Williams v. Pacific Surety Co.

• Decision Date: 24 March 1914
• Parties: WILLIAMS v. PACIFIC SURETY CO. ET AL. [d]
• Court: Oregon Supreme Court

139 P. 934

70 Or. 203

WILLIAMS v. PACIFIC SURETY CO. ET AL. ^[d]

Supreme Court of Oregon, En Banc.

March 24, 1914

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by F. F. Williams against the Pacific Surety Company and others. From a final order and judgment refusing to set aside a judgment in favor of plaintiff and defendant A. H. Ford against defendant Pacific Surety Company and another, and denying leave to file an answer, the Pacific Surety Company appeals. Reversed, with directions.

See also, 133 P. 1186.

McBride C.J., dissenting.

S. C. Spencer, of Portland, and T. H. Crawford, of La Grande (Wilbur & Spencer, of Portland, on the brief), for appellant. J. O. Bailey and C. W. Fulton, both of Portland (Platt & Platt, of Portland, on the brief), for respondent.

RAMSEY, J.

On August 1, 1910, the Oregon-Idaho Company, an Oregon corporation, entered into a contract with F. F. Williams and A. H. Ford whereby said company undertook to deliver to Ford and Williams, in a pond at a certain mill at Glendale, Or 200,000,000 feet of logs at the rate of not less than 10,000,000 feet during the first year from the date of said contract, and from 15,000,000 to 25,000,000 feet, at the option of said Ford and Williams, or their successors and assigns, during each and every year thereafter, until the 200,000,000 feet of logs should be delivered. Ford and Williams agreed to pay $7 per thousand feet for said logs, so to be delivered. For the faithful performance of its contract, the Oregon-Idaho Company executed to Ford and Williams a bond in the sum of $25,000 with the Pacific Surety Company, a corporation, as surety thereon. Said surety company joined in the execution of said surety bond. The Oregon-Idaho Company delivered to Ford and Williams, under said contract in August, 1910, 240,000 feet of logs, but failed to deliver any more logs under said contract, and said company was adjudged by the United States District Court for the District of Oregon to be an involuntary bankrupt, and Forrest S. Fischer became trustee in bankruptcy of the estate of said company. In January, 1911, after obtaining the permission of the said bankruptcy court to do so, F. F. Williams, as sole plaintiff, instituted an action in the circuit court of Multnomah county, against the Oregon-Idaho Company and the Pacific Surety Company and A. H. Ford, for the purpose of recovering from said Oregon-Idaho Company and said Pacific Surety Company, upon said bond, the sum of $25,000 as damages. In the complaint, it was stated that said A. H. Ford refused to join as plaintiff in said action, and that he was made a defendant for that reason. Said action was brought to recover $25,000 as damages for a breach of said contract, for the delivery of said logs by said Oregon-Idaho Company. The defendant the Pacific Surety Company appeared in said action and demurred to the complaint therein, alleging, inter alia: "That it appears upon the face of the complaint that there is a defect of parties plaintiff, in that A. H. Ford is not joined as a party plaintiff." The circuit court overruled said demurrer. The defendant the Pacific Surety Company, believing that its demurrer should have been sustained, stood by said demurrer, and the court below, having entered judgment against the defendant companies for the amonut demanded in the complaint, the Pacific Surety Company appealed to this court from said judgment, and this court affirmed the decision of the court below, overruling the said demurrer. 127 P. 145. Subsequently, on a motion for that purpose, this court modified said judgment, so as to permit the defendant the Pacific Surety Company to apply to the court below for permission to answer to the merits. 132 P. 959. The mandate from this court was entered in the court below on August 1, 1913. The appellant's motion to set aside the judgment against the appellant and for leave to file an answer to the merits was filed in the court below on October 21, 1913. It was accompanied by an affidavit of merits and by the answer which the appellant desired to file. Said motion and a copy of the proposed answer were served on the attorneys for the plaintiff on October 21, 1913, and on November 12, 1913, the court below denied said motion, and refused to set aside said judgment or permit the appellant to file an answer. The order of the court below denying said motion does not state any reason for denying it. The defendant the Pacific Surety Company appeals, and asks this court to reverse the order of the court below, and permit it to answer.

1. The plaintiff contends that this court has no jurisdiction of the appeal for the reason that the notice of appeal was not served on the Oregon Surety & Casualty Company or upon A. H. Ford. A. H. Ford was made a defendant because he refused to be joined as a plaintiff, but he has not appeared in this case in any manner.

As counsel for the plaintiff assert, appeal is a statutory remedy, and this remedy must be pursued in the manner prescribed by statute. Donart v. Stewart, 63 Or. 76, 126 P. 608; Lewis v. Chamberlain, 61 Or. 150, 121 P. 430.

If a party complies with the statute relating to appeals, he is entitled to that remedy. Our statute provides upon whom notices of appeal shall be served. Section 550, L. O. L., provides, inter alia, as follows: "If the appeal is not taken at the time the decision, order, judgment, or decree is rendered or given, then the party desiring to appeal may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney, at any place in the state, and file the original, with proof of service endorsed thereon, with the clerk of the court in which the judgment, decree, or order is entered." That is the statutory requirement as to the giving of notice of appeal where the notice is not given in open court when the judgment, order, or decree is granted.

In the first place, a notice of appeal is required to be served on no parties excepting those who are adverse to the appellant. In the second place, it is not necessary to serve the notice of appeal on a party who is adverse to the appellant, but who has not appeared in the action or suit. A. H. Ford is a party adverse to the appellant, but he never appeared in this case, and hence it was not necessary to serve the notice upon him.

The Oregon Surety & Casualty Company is not a party adverse to the appellant. It was surety for the appellant on its undertaking for its first appeal and for a stay proceedings, and judgment was entered against it because it was such surety for the appellant. Its interests are in common with, and not adverse to, the interests of the appellant. Both it and the appellant are interested in getting rid of the judgment. The Oregon Surety & Casualty Company has never appeared in this case. It was not necessary to serve the notice of appeal on said company.

In 23 Cyc. p. 1278, the author says: "The surety on a bond given in the course of legal proceedings submits himself to the acts of the principal and to the judgment as of itself, a legal consequence, falling within the suretyship, and therefore is conclusively bound by a judgment against the principal to the exclusion of all defenses which were or might have been set up by the latter."

The judgment against the surety on the appeal bond was taken without any notices being served upon it, and such surety could not have filed an answer in this case. There is no good reason for serving a notice on such surety.

In 3 Cyc. pp. 460, 461, the author says: "On the setting aside of a judgment, order, or decree, a dependent judgment or proceeding ancillary and accessory thereto shares its fate, and falls to the ground along with it, and, generally, the appellate court will specifically set aside such dependent matters so as to give consistency to the record." We hold that the appellant gave proper notice of appeal.

2. The main question on this appeal is whether the court below erred in refusing to open up the judgment...