Walters v. Dock Commission of City of Portland

• Decision Date: 25 September 1928
• Citation: Walters v. Dock Commission of City of Portland, 126 Or. 487, 270 P. 778 (Or. 1928)
• Parties: WALTERS ET AL. v. DOCK COMMISSION OF CITY OF PORTLAND.
• Court: Oregon Supreme Court

270 P. 778

126 Or. 487

WALTERS ET AL. v. DOCK COMMISSION OF CITY OF PORTLAND.

Supreme Court of Oregon

September 25, 1928

Appeal from Circuit Court, Multnomah County; C. H. McColloch, Judge.

Action by Ruth W. Walters and others against the Dock Commission of the City of Portland.On plaintiffs' motion to recall mandate for purpose of amending title to the cause after affirmance of judgment for plaintiffs(266 P. 634).Motion denied.

Frank J. Lonergan and J. B. Ofner, both of Portland (W. P. La Roche and Lonergan & Wagner, all of Portland, on the briefs), for appellant.

Arthur I. Moulton, of Portland (Lord & Moulton, of Portland, on the briefs), for respondents.

ROSSMAN J.

The plaintiffs have filed with this court a motion whose purpose is to amend the title of this cause by striking out of the name of the defendant the words "Dock Commission of"; thereupon the name of the defendant will appear as "The city of Portland, a Municipal Corporation," and it will become the judgment debtor.The city earnestly resists this motion.The plaintiffs and the city have filed with us several affidavits setting forth information in regard to the matter thus pending before us.From these affidavits and from the charter of the city we have gathered the following as the pertinent facts:

There is no corporate entity entitled the "Dock Commission of the City of Portland."The dock commission is a department of the city, created for the purpose, among others, of operating the public docks of that city.After this court affirmed the judgment of the circuit court, the plaintiffs sought collection of their judgment from the city but it declined payment, because the judgment did not name it as the debtor.The city is protected by a policy of casualty insurance in the sum of $7,500; the insurance company also declined to make payment, because the beneficiary named in its policy was not named in the judgment as the debtor.Thereupon the plaintiffs filed this motion.Several days before the service of the process in this action the attorneys for the plaintiffs, Messrs. Lord & Moulton represented another client, who had sustained an injury while in the city's employ upon its public wharves.In that action the name of the defendant appeared as "City of Portland, a Municipal CorporationDock Commission, and W. J. Jones & Son, a Corporation."Shortly after service of the process in that caseMr. Frank S. Grant, attorney for the city, sent a letter to Messrs Lord & Moulton, in which he wrote:

"This matter will be handled by W. P. La Roche, attorney for the commission of public docks.Hereafter please recognize him in the case, as this office does not handle the legal work of the commission of public docks."

Five days later the complaint and summons in our present action were served.In it, as we have observed before, the commission of public docks of the city of Portland was named as the defendant.While section 55, Or. L., provides that in actions against a city the summons shall be served upon the clerk of the city, service was made upon the secretary of the dock commission.The charter ordinances of the city provide that the city attorney shall have control over all actions in which the city is interested; the city attorney had no knowledge of this action until the plaintiffs sought payment of their judgment; the defense was handled by Mr. W. P. La Roche, special counsel for the dock commission, and by Mr. Frank Lonergan, who represented an insurance company which had written the casualty insurance which we have previously mentioned.Had the process been served upon the auditor of the city, that official would have transmitted the complaint and summons to the city attorney's office, and the latter would have handed them to Mr. La Roche.Mr. Lord, in an affidavit, avers that when he prepared the complaint in this casehe relied upon Mr. Grant's letter, and that he made the dock commission defendant, and directed service upon the secretary of that body, so as to clearly indicate the department sued, and avoid the necessity of transmitting the process from the auditor to the city attorney and from the latter to Mr. La Roche.

The city contends that, if we permit the plaintiffs to make the alteration which they request, it would thereby be introduced as the judgment debtor, although it has never had an opportunity to defend itself against the plaintiff's demands.The motion and its resistance by the city, therefore, requires us to determine whether service upon the secretary of the dock commission followed by an appearance of the commission's attorney in association with the attorney for the insurance company amounted to an appearance by the city.We should carry in mind, however, the contents of Mr. Grant's letter, and the fact that the city attorney's office was entirely ignorant of this action.As is held in Foshier v. Narver,24 Or. 441, 34 P. 21, 41 Am. St. Rep. 874, it is not the name that is sued, but the person to whom it is applied, and the right party may be served by a wrong name; "service upon a party by a wrong name is a good service, and gives the court jurisdiction."But, in order to accomplish the result of giving the court jurisdiction over the individual, either by his right or his wrong name, service must be made upon him, or he must appear and submit himself to the jurisdiction of the court.

We believe that neither of these events took place.Section 55, Or. L., directs how service of process should be made.If the plaintiffs rely upon service to yield to the court jurisdiction over the city, it is necessary that they should show that they have complied with the statute; nothing else will suffice.Bowers, Process and Service, § 352.Clearly their service failed to meet the statutory requirements.Since the charter of the city conferred upon the city attorney sole authority over the city's litigation, no one, other than the city attorney, or some other attorney, authorized by him, could, through an appearance confer jurisdiction upon the court.

But the plaintiffs argue that Mr. Grant's letter constituted an authorization for Mr. La Roche to appear in this case, and that his subsequent appearance conferred jurisdiction upon the court as effectually as if the city attorney had done so.This contention requires a construction of the letter.It first refers by name to a definite case; it then states that Mr. La Roche will handle that case.So far, there is nothing in the letter which would authorize Mr. La Roche to appear in the present case.The above is followed by the statement:

"This office does not handle the legal work of the commission of public docks."

The charter of the city provides:

"The city attorney must attend to, and shall, subject to the direction of the council, have control of all actions, suits or proceedings in which the city is legally interested. * * *"

Since the plaintiff's action was in fact litigation against the city, the city attorney could not divest himself completely of authority over it and other actions arising out of operations of the public docks and wharves.McQuillin, Municipal Corp. (2d Ed.) §§ 394, 519;Clough v. Hart,8 Kan. 487.

The statement by Mr. Grant that, if the complaint and summons had been transmitted to him by the auditor, he would have handed them to Mr. La Roche, indicated a means whereby the city attorney retained to himself authority over this class of litigation.We are of the opinion that the service of process failed to supply the court with jurisdiction over the city, and that the appearance by Mr. La Roche and the attorney for the casualty insurance company was not an appearance by the city.

The plaintiffs call to our attention the fact that Mr. Hegardt, secretary of the dock commission, verified the answer, and contend that he was an officer of the city of the type mentioned in section 360, Or. L.Even if we should agree with the plaintiffs in this contention, we do not believe that it would assist them materially in their difficulty, because the charter of the city placed control over the city's litigation in the office of the city attorney, and not in the office of the secretary of the dock commission.Thus, while Mr. Hegardt's verification might be sufficient to constitute the document a pleading, he still lacked authority to determine the city's course in litigation.It is not necessary for us to determine whether those portions of the charter which create the dock commission, and yield to it authority, empower it to employ an attorney, because no attorney employed by the commission could usurp the authority granted by the charter exclusively to the city attorney to determine the city's participation in litigation.

The plaintiffs have cited considerable case law in an endeavor to persuade the court in their favor.We have carefully studied all of the cases cited, because we recognize that the matter before us is a serious and important one.The death of the father and husband, which occasioned this litigation, has been recognized by this court, as well as the court below, as the negligent act of the employees of the dock commission; to lose the fruits of the victory will be a severe misfortune to the plaintiffs.Upon the other hand, to fabricate out of the facts before uscase law, whereby it will be possible to inject into litigation a party as judgment debtor after the action has been tried, appealed, and the judgment affirmed would be fraught with dangerous...