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was that the cause be heard touching the appears in the record. We cannot look out new matter at the rehearing on the original of it for testimony to influence the judgment bill. It stated the former bill and proceed- of this court sitting as an appellate tribunal. ings thereon, the decrce, and the point in And according to the practice of the court which the complainant conceived himself to of chancery from its earliest history to the be aggrieved by it, and the new matter dis- present time no paper not before the court covered upon which he sought to impeach it. below 'can be read on the hearing of an apThere was a plea or traverse, and a trial peal.” These are the only cases we find comproceeded regularly upon the issues thus ing near the present question. Both these jujoined. 2 Daniell, Ch. · Pl. & Prac. *1579– risdictions seem to have retained the common1583. A strong current of authorities hold law chancery practice, and the corstant exto the doctrine that where there has been an ercise of their judicial powers and functions appeal, and a decree by the appellate court, is in accord therewith. The bill of review leave must be obtained in that court, or the and the supplementary bill in the nature of right to file the bill reserved in its decree. review are recognized in both as appropriate The reasoning upon which the doctrine is and legitimate instrumentalities by which to maintained is that an inferior court ought | obtain a modification or impeachment of a not to be permitted to review or revise a de- decree of the court, and in each the trial in cree of a superior court without permission the appellate court is anew, and is conof the latter. U. S. 7. Knight's Adm'r, 1 fined strictly to the testimony offered in the Black, 488; Southard v. Russell, 16 How. 547; court below. So it would seem there is no Stafford v. Bryan, 2 Paige, 46; Kimberly v. sufficient reason for the divergence in the Arms, 40 Fed. 548; Watson v. Stevens, 3 C. practice attending a petition for rehearing in C. A. 411, 53 Fed. 31; Bank v. Taylor, 4 the supreme court made in the Michigan C. C. A. 55, 53 Fed. 855; In re Gamewell case unless it may be accounted for by some Fire-Alarm Tel. Co., 20 C. C. A. 111, 73 Fed. chancery rule or statute peculiar to that 908; Ryerson y. Eldred, 18 Mich. 490; Gale state. The decisions of this court are inv. Nickerson, 144 Mass. 415, 11 N. E. 714. structive in this connection. In Day v. HolThe authorities, however, are not all agreed, land, 15 Or. 464, 15 Pac. 855, it was held that and it is maintained by some that the court the jurisdiction of this court is appellate and of chancery has inherent power, without con- revisory only, and it can exercise no original sent of the appellate tribunal, to review its jurisdiction; that an appeal from a decree decree on the ground of newly-discovered does not break it up, and until annulled or evidence, although passed upon on appeal. reversed it is binding upon the parties as to See Putnam v. Clark, 35 N. J. Eq. 150, and every question directly decided, and that the authorities there cited. But, whatever may distinctions which had formerly existed bebe the true rule with regard to the forum tween the effect to be given to an appeal wherein application therefor should be made, and the suing out of a writ of error has been it is always necessary that leave should be swept away by the enactments of the code. first obtained from a tribunal competent to Under the former chancery practice the apgrant it, before a bill of review or a bill in peal suspended the decree of the court below, the nature of a review, based upon newly- so that it could not be carried into execution discovered evidence, can or will be enter- until after the appeal had been disposed of, tained. Flower v. Lloyd, 6 Ch. Div. 297. while a writ of error left the judgment in Thereafter the bill or supplemental bill—its full force, although, if bail was put in, it nature depending upon whether the decree operated as a supersedeas; but since the has been enrolled or not-is filed as an orig- | adoption of the code procedure it would inal proceeding in the court wherein the de- seem that a judgment and decree are alike cree complained of was announced, and is operative, and stand upon the same footing, there prosecuted. Gib. Suit in Ch. $ 1060; until reviewed and revised upon the appeal; Beach, Mod. Eq. Prac. $ 863; Dodge v. North- and a stay must be obtained, if at all, by rop (Mich.) 48 N. W. 505. A case is cited the statutory mode. So that while, under from Michigan holding the proper practice the code procedure in equity, the appeal to be, where a case is made out for a rehear- brings the case here to be tried anew upon ing upon newly-discovered evidence, by pe- the transcript and evidence, the decree of tition filed in the supreme court, to remand the court below remains in full force and the cause to the court below, with appropri- effect, and may be carried into execution unate directions for a rehearing there. Adams less stayed in the manner provided therefor; v. Field, 25 Mich. 18. But we have been thus the appeal is more nearly assimilated unable to find a precedent elsewhere for such to the writ of error than under the old pracpractice. In Russell v. Southard, 12 How. tice. Again, it has been decided in Crews 158, under conditions very similar to the case v. Richards, 14 Or. 442, 13 Pac. 67, that unat bar, Chief Justice Taney refused a like der the Code (section 381, Hill's Ann. Laws motion for rehearing. In deciding the mo- Or.) an original suit, based upon similar tion he said: “It is very clear that affida- grounds to those which were formerly sufvits of newly-discovered testimony cannot be ficient to found proceedings by a bill of rereceived cor such a purpose. This court view or a bill of that nature, may now be must affirm or reverse upon the case as it maintained in equity to impeach, set aside, suspend, or avoid a decree. So that the old Appeal from circuit court, Coos county; J. procedure by such bills is entirely eliminat- C. Fullerton, Judge. ed from our equity practice, and an original Petition by H. W. Dunham against W. H. suit substituted by which to accomplish the S. Hyde, recorder of the town of Marshfield, same purpose. Such a suit may be insti- Coos county, Or., for a writ of mandamus. tuted as a matter of right, and without leave, The writ issued, and defendant appeals. Re and there appears now no reason wby the versed. decree of this court may not be the subject D. L. Watson and E. B. Watson, for appelof such attack, as well as that of the court

lant. P. H. D'Arcy, J. W. Bennett, and John below. It is clear that we ought not to adopt | F. Hall, for respondent. a practice so nearly analogous to that which has been specially abolished by statute. A

BEAN, J. This is a mandamus proceeding motion for rehearing, based upon newly-dis- to compel the defendant, as recorder of the covered evidence, miglit very properly bave town of Marshfield, to give notice to the petibeen entertained by the court below, if filed tioner and one Elrod, each of whom received in season; and, acting by authority of its

an equal and the highest number of votes for original jurisdiction, it could have set aside the office of town marshal at the annual elecits decree, and ordered a new trial; but this tion held in December, 1896, requiring them to court, in the exercise of its appellate juris- attend at his office, at a time to be appointed diction, acts only upon the transcript and

by him, for the purpose of having their right the evidence, and it cannot permit itsaction to to the office determined by lot. Upon the be governed or controlled by affidavits touch

filing of the petition, a peremptory writ was ing testimony aliunde. It cannot set aside a issued, and defendant appeals. decree but by the record. The situation is It is not claimed by the petitioner that it is this: we have affirmed the decree of the court

made the duty of the defendant, by any parbelow upon the transcript and evidence, and ticular provision of the charter of Marshfield, this determination remains unquestioned by to take the proceedings demanded, but the conthe motion, but we are asked, in considera- tention is that it is imposed upon him by section of newly-discovered evidence, to vacate tion 2539 of Hill's Annotated Laws, providing the decree of the court below, and direct a

the procedure in the case of a tie in an elecrehearing there. It must be conceded that an tion of county or precinct officers. Section allowance of the motion would not be in the 21 of the town charter provides that "all the exercise of strictly revisory powers. But, laws of this state regulating and governing notwithstanding, if it was necessary, to pre- general elections and proceedings and matters vent a failure of justice, to establish such a incident thereto shall apply and govern elecrule, we would hesitate long before refusing tions under this act, except as herein otherwise to adopt it, or some rule suitable to the pur- | provided"; and the argument is that, by this pose; but the plaintiff has an adequate rem- provision, section 2539 of the Code is incoredy hy original suit, and it is wholly unnec- porated into the charter as though recited in essary to provide another. For an analogous full. But the section referred to is a part of holding, see Flower v. Lloyd, 6 Ch. Div. 299, the general laws of the state providing the where it was held that leave would not be

time and manner of canvassing the returns, granted for a rehearing of the appeal be- and declaring the result of an election for state fore the court of appeal on the ground of and county officers; and, since the manner the subsequent discovery of facts tending to of canvassing the returns and declaring the show that the decree was obtained by fraud result of a town election is fully provided for practiced upon the court below, for the rea- in the charter, it may be well doubted whether son that in such a case the decree could be the section in question is among the provisions Impeached by original bill. Let an order be of the general law regulating and governing entered overruling the motion.

elections intended to be made a part of the charter by section 21. But, however this may be, the incorporation of the section in the

charter would not, it seems to us, extend its (30 Or. 385) DUNHAM v. HYDE.

scope or operation so as to make it the duty of

the recorder, in case of a tie in a city election, (Supreme Court of Oregon, April 12, 1897.) to take the same procedure required to be takTowns-ELECTIONS-Tie VOTES-DUTY OF en by the county clerk in case of a tie in the RECORDER.

election of county or precinct officers. To do A town charter providing that all laws reg. ulating general elections shall govern elections

so would be enlarging, by construction, the under the charter does not impose on the town

powers and duty of the recorder much beyond recorder the duty of determining tie yotes by the scope of the charter. If section 2539 is lot in town elections, which is imposed on the to be read into the charter, it would seemingly county clerk in_county and precinct elections by Hill's Ann. Laws, $ 2539, since the charter

make the county clerk, and not the city reprovides neither that the town recorder shall corder, the proper officer to preside over the be substituted for the county clerk in the appli- decision by lot, and declare the result in case cation of the statute to the town, nor that the

of a tie in a town election, if it can be said that method of determining ties in county elections shall be adopted, instead of the different method

a town officer is to be deemed a precinct or prescribed in legislative electious.

county officer, within the meaning of that sec. tion. Section 21 of the town charter does not and that this court should dismiss the appurport to impose this duty on the city re- peal, with directions to the court below to corder, or to add to or enlarge his powers or dismiss the suit, so that the relation of the duties in any manner whatever. His duties parties woull then stand as if no suit had are specially provided in the charter, and no ever been begun or decree rendered, while provision is made for his deciding or partici- the plaintiff claims that defendant's death pating in the decision or determination of the abates the appeal only, and that the decree result in case of a tie in the election of a city of the court below remains in full force and officer.

effect, as a final determination of the rights And, again, the general laws of the state of the parties thereto. Neither position can regulating and governing elections contain dif- be maintained. In Day V. Holland, 15 Or. ferent provisions for deciding a tie vote. Thus, 464, 15 Pac. 855, it was decided that under where the vote is a tie on candidates for the the code procedure an appeal from a decree legislature, the law requires that a new elec- does not break it up nor vacate it, and that tion be had; while in case of county or pre- it may be carried into execution notwithcinct officers it is to be decided in accordance standing the appeal, unless stayed by a suwith the provisions of section 2539. Now, if persedeas undertaking. We are aware that section 21 of the charter has the effect contend- there is a strong dissenting opinion in the ed for, which of these provisions is to apply to cause cited, wherein cogent reasons are givthe case in hand? It is true, a city marshal en why the old equity practice should still is not a member of the legislature, neither is prevail in that regard, notwithstanding the he a county or precinct officer; and, before innovations of the Code; but we feel bound either of these provisions can be made to ap- by the prevailing opinion, and are constrainply to a case like the one before us, the courts ed to follow it as a precedent. It is provid, must do some judicial legislation under the ed by statute that "no action shall abate by guise of construction. But why pursue this the death, marriage, or other disability of a subject further? Enough has been said, we party, or by the transfer of any interest think, to show that the law does not specially therein, if the cause of action survive or enjoin upon the defendant, as a duty resulting continue”; and that "an action for a wrong from his office, the performance of the act shall not abate by the death of any party, which it is sought to coerce by this proceeding. after the verdict has been given therein, but

For these reasons, it follows that the judg- the action shall proceed thereafter in the ment of the court below must be reversed, and same manner as in cases where the cause of the cause remanded, with directions to dismiss action survives.” Hill's Ann. Laws Or. $$ the petition.

38, 39. These appear to be all the statutory

provisions pertaining to the subject. It is (34 Or. 1)

quite apparent, from the very nature of

things, that the cause of suit does not surNICKERSON v. NICKERSON.

vive the death of a party where the only (Supreme Court of Oregon. April 5, 1897.)

relief sought is a dissolution of the marAPPEAL-ABATEMENT.

riage relations, for death effectuates more An appeal by a husband from a decree for surely the very end which it is the especial divorce, whereby the wife became entitled to one-third of his property, does not abate by his

purpose of the suit to accomplish.

As was death, but survives to his heirs.

said by Cotton, L. J., in Stanhope v. Stan

hope, 11 Prob. Div. 103, 105, "It would be a Appeal from circuit court, Linn county; H.

singular thing, if, after the marriage had H. Hewitt, Judge.

been dissolved by death, there were power Action by Elizabeth M. Nickerson against

to declare it at an end on another ground." Hugh Nickerson, in which there was a de

The authorities are uniform upon this propocree for plaintiff, from which defendant ap

sition. See Barney v. Barney, 14 Iowa, 189; pealed. Both parties move to dismiss the

Wilson v. Wilson, 73 Mich. 620, 41 N. W. appeal, on a suggestion of appellant's death.

817; Kirschner v. Dietrich, 110 Cal. 502, 42 Denied.

Pac. 1064; Pearson v. Darrington, 32 Ala. N. M. Newport and M. C. George, for ap- 253; McCurley v. McCurley, 45 Am. Rep. pellant. J. K. Weatherford, for respondent. 720. But, where the consequences of the

divorce are such as affect the property rights WOLVERTON, J. The plaintiff on Janu- of the parties to the suit, the heirs or personary 27, 1896, obtained a decree of divoree al representatives may have such an interest against the defendant, and thereby the title in the litigation as that the cause will surto an undivided third of defendant's real vive, not for the purpose of continuing the property The defendant sought a divorce, controversy touching the right of divorce also, by cross bill, which was dismissed. within itself, but for the ascertainment of After an appeal had been perfected, the de- whether the property has been rightfully difendant diel, and both parties, by their re- verted from its appropriate channel of devospective attorneys, upon suggesting his death, lution. The present case furnishes a good filed motions to dismiss the appeal, but for illustration. Had the defendant died prior very different purposes. Counsel for defend- to the divorce, his real property would have ant claims that his death abates the suit, descended to his heirs, subject to his widow's right of dower, but under the decree she of the official report of the trial, and his misobtains an undivided one-third interest ab- taken belief that 60 instead of 30 days had been solute therein,-results of very different sig.

allowed in which to present said bill. nificance. So that the heirs have an inter

Mandamus by M. E. McElvain against W. est in continuing the controversy, to deter- L. Bradshaw, circuit judge, and others. Writ mine whether they have been rightfully or

dismissed. wrongfully affected in their property rights. Dufur & Wilson, for plaintiff. C. M. Idle See Thomas v. Thomas, 57 Md. 504; Dow

man, Atty. Gen., and A. A. Jayne, for defendner v. Howard, 44 Wis. 82. It has been sug- ants. gested that the relief which the statute affords, by giving the prevailing party in the

BEAN, J. This is an original proceeding suit one-third interest in the lands of the spouse, is but an incident to the divorce, and

judge of the Seventh judicial district to setoperates as a penalty for a violation of the

tle and sign a bill of exceptions in a crimmarital relations. And so it is, but it does

inal action. The facts, as shown by the not follow that the suit, after divorce grant

alternative writ, answer, and accompanying ed, or even that the appeal, abates upon the

affidavits, so far as material to any ques. death of a party thereto. At common law

tion before us, are, in substance, that on the general rule is that criminal actions

October 6, 1896, the petitioner was convictabate with the death of the accused, but if

ed in the circuit court for Sherman county the crime be that of treason or felony, which

of the crime of forgery, and on the followworks an attainder, the heirs or personal rep

ing day sentenced to the penitentiary for the resentatives may prosecute an appeal to re

term of two years. During his trial, numer. verse the attainder,--State v. Martin (Or.) 47

ous exceptions were taken to the rulings of Pac. 196,-although the forfeiture is but an

the court, but they were not reduced to writincident of the action. The cause was per

ing at the time, and his counsel asked for mitted to survive to prevent a wrongful dev

and was allowed 30 days after the term in olution of the property of the deceased should

which to prepare and tender a bill of excepIt appear that the judgment of attainder was

tions, but they allowed it to expire without erroneous. The analogy is apparent with

doing so. Thereafter, and on the 1st of Deout elucidation. The clause of the statute

cember, 1896, what purports to be a bill of preventing either party from contracting exceptions, a copy of which is annexed to marriage with a third until the period allow

and made a part of the petition, was ten. ed for the appeal has expired is a wise pre

dered to the trial judge; but he refused to cautionary measure to prevent the evil re

settle or allow it, because, as stated in his sults which might arise from conflicting mar

answer to the alternative writ, “the plaintiff riage relations should the decree of the court

and petitioner herein and his attorneys, and below be reversed, but was not intended to

each of them, had been guilty of carelesssuspend the decree. Such a decree has the

ness, and that the court had no right to ex"effect to terminate the marriage," and its

cuse such carelessness on the part of the fipality must be governed and determined by

attorneys in reference to the order of the the same rules as are applied in other suits

court, as it would destroy the effect and in equity. From these considerations, we

power of the orders of the court, and place conclude that the suit did not abate by the

a premium on carelessness," and "that the death of the defendant, except as it pertains plaintiff and petitioner, nor his attorneys or to the cross bill, neither does the appeal, but

either of them, have never applied to or that the cause and the appeal both survive to

asked this defendant for an extension of the the heirs of the deceased, and they may pros- time within which to prepare and present ecute the cause in this court for the purpose

said bill of exceptions, but have carelessly of determining whether the divorce was

and negligently allowed the time to go by, rightfully granted, to the end that conflicting without preparing or presenting the same, or property rights, as between them and the

asking for an extension of time in which to plaintiff, may be settled and determined.

do so, and that this defendant was at all Both motions will therefore be disallowed.

times within the time fixed by said order ready and willing to sign and file a proper

bill of exceptions in said case, and was (30 Or. 569)

willing, upon a proper sbowing, to have exMcELVAIN V. BRADSHAW, Circuit Judge, tended the time within which said bill of

exceptions could have been presented, but (Supreme Court of Oregon. April 5, 1897.) the plaintiff and petitioner, and his attor. BILL OF ExcePTIONS-TIME FOR Filix-MANDA

neys, and each of them, wholly disregarding MUS TO COMPEL ALLOWANCE.

said order, carelessly and negligently failea The discretion of the court in refusing to

and refused to prepare and present said bill settle and sign a bill of exceptions in a criminal of exceptions within the time ixed by said case, after the expiration of the time fixed, and order, or to ask within said time for an ez. in the absence of any previous application for

tension of time in which to do so." an extension of time, cannot be controlled by mandamus, on the ground that appellant's de

It is well settled that mandamus lies in a fault arose from bis inability to olluin a copy proper case to compel a trial judge to settle i Rehearing pending,

et al. 1

circumstances over which he had no control, of the benefit of the exceptions taken by him during the progress of a trial. But whether the bill shall be settled and allowed after the time limited is a matter within the sound judicial discretion of the trial judge, the exercise of which cannot be controlled by mandamus, save under circumstances which do not appear in this case. The reasons given by the petitioner for not tendering the bill within the time allowed are, briefly, (1) his alleged inability to obtain from the stenographer a copy of the official report of the trial from which to prepare it, and (2) a mistaken belief that 60 days had been allowed for that purpose, neither of which is sufficient to support the proceeding. The first, no doubt, would have been considered good ground for granting an extension of time if a proper application had been made therefor; and the second was an error of counsel, which, under the circumstances, would manifestly have justified the trial judge in excusing the default, but it is not sufficient to authorize us to compel him to do so. It is therefore believed that we would not be justified in requiring the de fendant to settle and sign the bill after his refusal to do so. It follows that the writ must be dismissed, and it is so ordered.

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and sign a bill of exceptions, but not to direct hin what to put in such bill where there is any controversy as to what it should contain. Elliott, App. Proc. $ 510; High, Extr. Rem. $ 200; 3 Enc. Pl. & Prac. 489; People v. Anthony, 129 Ill. 218, 21 N. E. 780; Jelley v. Roberts, 50 Ind. 1; State v. Hawes, 43 Ohio St. 16, 1 N. E. 1. And in Che Gong v. Stearns, 16 Or. 219, 17 Pac. 871, It was beld that this court, as an incident to and in aid of its appellate authority, had a right to exercise the power in a criminal case, although the bill was not presented or tendered to him within the term at which the trial was had, nor within an extension of time allowed for that purpose, and this must be regarded as the settled law of the state. It follows, then, that the only question for our determination is whether the circumstances attending the case at bar call for its exercise, and upon this question the Stearns Case is not in point. That case, as will be observed from the opinion, was heard on a demurrer to the writ, and the question was "whether or not, in any case or under any circumstances, a circuit judge has the power to sign and allow a bill of exceptions," after the time allowed for that purpose; and, when it was determined that such pow. er existed, the writ issued as a matter of course. But in the case before us Judge Bradshaw has answered, and says that he refused to sign the bill, not for want of authority, but because, through carelessness and negligence, it was not tendered within the time allowed. Our statute does not prescribe the time in which a bill of exceptions shall be presented for settlement and allowance, and in practice it is permitted after the expiration of the term at which the trial Is had; but obviously it should be done while the evidence and rulings of the court are fresh within the recollection of the trial court and counsel, and therefore it is emInently proper that it be settled either during the term or within some definite time there after. 3 Enc. Pl. & Prac. 468. But, while this is so, an order to that effect is not conclusive, but the trial judge may disregard it, and sign the bill after the expiration of the time allowed (3 Enc. Pl. & Prac. 462; Marye v. Strouse, 5 Fed. 494; Coe v. Morgan, 13 Fed. 844); and, he does so, we will not inquire into the reasons which may have induced the act, but will presume they were sufficient.

The right of a trial court to limit the time for the settlement of a bill of exceptions is Indispensable to the orderly administration of the law, and it is entirely proper that the appellant be required to tender his proposed bill within the time fixed, or give a sufficient excuse for not doing so. But, when a reasonable excuse is shown, the trial judge should not hesitate to settle and allow it, notwithstanding the expiration of the time. It would be a very rigorous doctrine to hold that an appellant should be deprived, by

(31 Or. 450) SABIN . WILKINS et al. 1 (Supreme Court of Oregon. April 12, 1897.) FRAUDOLENT CONVEYANCES-CRATTEL MORTGAGE

-RETENTION OF PossessION AND SALE BY MORTGAGOR-ASSIGNMENT FOR BENEFIT OF CREDITORS -VALIDITY.

1. A debtor gave his wife, to secure a bona fide debt, a chattel mortgage on a stock of goods, which permitted him to retain possession, but forbade any sale of the property, or any part of it, by him. Held, that the mortgage was valid as to attaching creditors, in the ab sence of a showing that he was permitted, with the knowledge of his wife, to conduct the business in his usual course of trade, or to use the proceeds of sales for his own use in disregard of the mortgage conditions.

2. A debtor who gave his wife a chattel mortmortgage, and two days thereafter, told other creditors that if his property was attached he would have to assign. After the mortgage was given, he and such creditors made a contract, whereby he was to pay 75 per cent. in full of his indebteness,--25 per cent. in cash in one week, and the balance in secured notes. Six days thereafter he notified them that it was impossible to do so, and on the following day the creditors attached the goods. Just before the attachment he told the creditors that if they would give him time he could pull through. The assignment was made the next day. Held, that the mortgage was not a part of the assignment, rendering the latter void on account of preferring the wife.

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

Action by R. L. Sabin against 8. N. WIlkins and others. From a judgment for plaintiff, defendants appeal. Reversed.

Relearing pending.

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