Watson v. Noonday Min. Co.

• Decision Date: 23 January 1899
• Citation: 55 P. 867,37 Or. 287
• Parties: WATSON v. NOONDAY MIN. CO.
• Court: Oregon Supreme Court

55 P. 867

37 Or. 287

WATSON v. NOONDAY MIN. CO.

Supreme Court of Oregon

January 23, 1899

Appeal from circuit court, Douglas county; J.C. Fullerton, Judge.

Action by J. Frank Watson against Noonday Mining Company. From a judgment for plaintiff, defendant appealed. Plaintiff moves to dismiss the appeal. Overruled.

A.M. Crawford and J.W. Whalley, for the motion.

F.W Benson and O.P. Coshow, opposed.

PER CURIAM.

This suit was brought in the circuit court of Douglas county by the plaintiff to foreclose certain material men's liens on a mining claim in that county, belonging to the defendant the Noonday Mining Company. The John A. Roebling's Sons Company, a foreign corporation, was made a defendant, under the allegation that it had or claimed some interest in or lien upon the mine, but that such interest or claim was subsequent to and subject to plaintiff's lien. It answered, denying that its claim or lien was subsequent to that of plaintiff, and setting up a lien for materials furnished by it to the contractor and agent of the Noonday Mining Company, which it alleges is superior to the lien of plaintiff. The Noonday Mining Company answered, putting in issue the validity of both liens; and a trial, being had resulted in a decree establishing the liens of both these parties, and directing the sale of the mining property, and the distribution of the proceeds among them. From this decree the Noonday Mining Company appealed, by serving a notice thereof in Douglas county upon the resident attorney of the plaintiff, and in Multnomah county upon the attorneys of Roebling's Sons Company who are resident of such county.

The plaintiff now moves to dismiss the appeal, on the ground that the Roebling's Sons Company is an adverse party, and that service of the notice of appeal upon its attorney in Multnomah county is not sufficient to confer jurisdiction. Conceding the soundness of the latter position for the purposes of this motion, and assuming that no appeal has been taken from the decree of the court below establishing the lien of Roebling's Sons Company, the motion of the plaintiff is, nevertheless, not well taken, because the Roebling's Sons Company is not an adverse party on such appeal, within the meaning of the rule sought to be invoked. Its interests are not in conflict with a reversal or modification of the decree so far as the plaintiff is concerned. Its rights would not be injuriously affected if d...