Johnson v. Paulson

¶1delivered the opinion of the court.

¶21. During the trial the claim of Shea was admitted by appellants and their attorney stated in open court: “I think he is entitled to recover in this case.” While not technically a decree by confession within the meaning of Sections 186 to 192, L. O. L., inclusive, the admission is equivalent to a consent decree which is not appealable: Fassman v. Baumgartner, 3 Or. 469; Twitchell v. Risley, 56 Or. 226 (107 Pac. 459); Plinsky v. Nolan, 65 Or. 402 (133 Pac. 71); Schmidt v. Oregon Mining Co., 28 Or. 9 (40 Pac. 406, 1014, 52 Am. St. Rep. 759); State v. McDonald, 63 Or. 467 (128 Pac. 835, Ann. Cas. 1915A, 201); Boyer v. Burton, 79 Or. 662 (149 Pac. 83); 3 C. J., §§ 453, 546.

¶3*2422. Shea is in no way united in interest with any of the other respondents and there is no good reason for compelling him to present his claim on an appeal which must inevitably be dismissed as to him. Moreover, Shea was not necessarily an adverse party within the rule established in Watson v. Noonday Mining Co., 37 Or. 287(55 Pac. 867, 58 Pac. 36, 60 Pac. 994), although he would be an adverse party if his claim had been disallowed by the trial court: Barton v. Young, 78 Or. 215 (152 Pac. 876).

¶43, 4. Nor does a dismissal of the appeal as to Shea jeopardize the rights of the other respondents. See.tion 425, L. O. L., declares that if a decree of foreclosure is in favor of different persons, not united in interest, an execution shall issue upon the joint request of such persons or upon the order of the court or judge thereof on the motion of either of them. All the lien claimants cannot join in a request for an execution because the hands of some of the judgment creditors are stayed by an undertaking which complies with the requirements of Section 551, L. O. L. Shea would at all events he required to share the proceeds with such other lien claimants as might prevail on the appeal because one of the provisions of the decree obtained by Shea is to the effect that he shall share pro rata with the other judgment creditors. The assignments of error point out objections to the judgments granted to Johnson, Carlson, Eemaley, Hansen & Holding, J. B. "Winstanley Company and the Oregon Door Company and those objections which arise out of separate parts of the final decree can he adjudicated without the presence of Shea: Poppleton v. Nelson, 10 Or. 437; Everding & Farrell v. Toft, 82 Or. 1 (150 Pac. 757). See also Williams v. Wilson, 42 Or. 299, 308 (70 Pac. *2431031, 95 Am. St. Rep. 745); Lauriat v. Stratton (C. C.), 11 Fed. 107 (6 Sawy. 339, 342).

¶5The appeal is dismissed as to J. F. Shea.

¶6Motion to Dismiss Allowed.