Page images

was that the cause be heard touching the new matter at the rehearing on the original bill. It stated the former bill and proceedings thereon, the decree, and the point in which the complainant conceived himself to be aggrieved by it, and the new matter discovered upon which he sought to impeach it. There was a plea or traverse, and a trial proceeded regularly upon the issues thus joined. 2 Daniell, Ch. Pl. & Prac. *15791583. A strong current of authorities hold to the doctrine that where there has been an appeal, and a decree by the appellate court, leave must be obtained in that court, or the right to file the bill reserved in its decree. The reasoning upon which the doctrine is maintained is that an inferior court ought not to be permitted to review or revise a decree of a superior court without permission of the latter. U. S. v. Knight's Adm'r, 1 Black, 488; Southard v. Russell, 16 How. 547; Stafford v. Bryan, 2 Paige, 46; Kimberly v. Arms, 40 Fed. 548; Watson v. Stevens, 3 C. C. A. 411, 53 Fed. 31; Bank v. Taylor, 4 C. C. A. 55, 53 Fed. 855; In re Gamewell Fire-Alarm Tel. Co., 20 C. C. A. 111, 73 Fed. 908; Ryerson v. Eldred, 18 Mich. 490; Gale v. Nickerson, 144 Mass. 415, 11 N. E. 714. The authorities, however, are not all agreed, and it is maintained by some that the court of chancery has inherent power, without consent of the appellate tribunal, to review its decree on the ground of newly-discovered evidence, although passed upon on appeal. See Putnam v. Clark, 35 N. J. Eq. 150, and authorities there cited. But, whatever may be the true rule with regard to the forum wherein application therefor should be made, it is always necessary that leave should be first obtained from a tribunal competent to grant it, before a bill of review or a bill in the nature of a review, based upon newlydiscovered evidence, can or will be entertained. Flower v. Lloyd, 6 Ch. Div. 297. Thereafter the bill or supplemental bill-its nature depending upon whether the decree has been enrolled or not-is filed as an original proceeding in the court wherein the decree complained of was announced, and is there prosecuted. Gib. Suit in Ch. § 1060; Beach, Mod. Eq. Prac. § 863; Dodge v. Northrop (Mich.) 48 N. W. 505. A case is cited from Michigan holding the proper practice to be, where a case is made out for a rehearing upon newly-discovered evidence, by petition filed in the supreme court, to remand the cause to the court below, with appropri ate directions for a rehearing there. Adams V. Field, 25 Mich. 18. But we have been unable to find a precedent elsewhere for such practice. In Russell v. Southard, 12 How. 158, under conditions very similar to the case at bar, Chief Justice Taney refused a like motion for rehearing. In deciding the motion he said: "It is very clear that affidavits of newly-discovered testimony cannot be received for such a purpose. This court must affirm or reverse upon the case as it

appears in the record. We cannot look out of it for testimony to influence the judgment of this court sitting as an appellate tribunal. And according to the practice of the court of chancery from its earliest history to the present time no paper not before the court below 'can be read on the hearing of an appeal." These are the only cases we find coming near the present question. Both these jurisdictions seem to have retained the commonlaw chancery practice, and the constant exercise of their judicial powers and functions is in accord therewith. The bill of review and the supplementary bill in the nature of review are recognized in both as appropriate and legitimate instrumentalities by which to obtain a modification or impeachment of a decree of the court, and in each the trial in the appellate court is anew, and is confined strictly to the testimony offered in the court below. So it would seem there is no sufficient reason for the divergence in the practice attending a petition for rehearing in the supreme court made in the Michigan case unless it may be accounted for by some chancery rule or statute peculiar to that state. The decisions of this court are instructive in this connection. In Day v. Holland, 15 Or. 464, 15 Pac. 855, it was held that the jurisdiction of this court is appellate and revisory only, and it can exercise no original jurisdiction; that an appeal from a decree does not break it up, and until annulled or reversed it is binding upon the parties as to every question directly decided, and that the distinctions which had formerly existed between the effect to be given to an appeal and the suing out of a writ of error has been swept away by the enactments of the code. Under the former chancery practice the appeal suspended the decree of the court below, so that it could not be carried into execution until after the appeal had been disposed of, while a writ of error left the judgment in full force, although, if bail was put in, it operated as a supersedeas; but since the adoption of the code procedure it would seem that a judgment and decree are alike operative, and stand upon the same footing, until reviewed and revised upon the appeal; and a stay must be obtained, if at all, by the statutory mode. So that while, under the code procedure in equity, the appeal brings the case here to be tried anew upon the transcript and evidence, the decree of the court below remains in full force and effect, and may be carried into execution unless stayed in the manner provided therefor; thus the appeal is more nearly assimilated to the writ of error than under the old practice. Again, it has been decided in Crews v. Richards, 14 Or. 442, 13 Pac. 67, that under the Code (section 381, Hill's Ann. Laws Or.) an original suit, based upon similar grounds to those which were formerly sufficient to found proceedings by a bill of review or a bill of that nature, may now be maintained in equity to impeach, set aside,

suspend, or avoid a decree. So that the old procedure by such bills is entirely eliminated from our equity practice, and an original suit substituted by which to accomplish the same purpose. Such a suit may be instituted as a matter of right, and without leave, and there appears now no reason why the decree of this court may not be the subject of such attack, as well as that of the court below. It is clear that we ought not to adopt a practice so nearly analogous to that which has been specially abolished by statute. A motion for rehearing, based upon newly-discovered evidence, might very properly have been entertained by the court below, if filed in season; and, acting by authority of its original jurisdiction, it could have set aside its decree, and ordered a new trial; but this court, in the exercise of its appellate jurisdiction, acts only upon the transcript and the evidence, and it cannot permit its action to be governed or controlled by affidavits touching testimony aliunde. It cannot set aside a decree but by the record. The situation is this: we have affirmed the decree of the court below upon the transcript and evidence, and this determination remains unquestioned by the motion, but we are asked, in consideration of newly-discovered evidence, to vacate the decree of the court below, and direct a rehearing there. It must be conceded that an allowance of the motion would not be in the exercise of strictly revisory powers. But, notwithstanding, if it was necessary, to prevent a failure of justice, to establish such a rule, we would hesitate long before refusing to adopt it, or some rule suitable to the purpose; but the plaintiff has an adequate remedy by original suit, and it is wholly unnecessary to provide another. For an analogous holding, see Flower v. Lloyd, 6 Ch. Div. 299, where it was held that leave would not be granted for a rehearing of the appeal before the court of appeal on the ground of the subsequent discovery of facts tending to show that the decree was obtained by fraud practiced upon the court below, for the reason that in such a case the decree could be Impeached by original bill. Let an order be entered overruling the motion.

(30 Or. 385)


(Supreme Court of Oregon. April 12, 1897.) TOWNS-ELECTIONS-TIE VOTES-DUTY OF


A town charter providing that all laws regulating general elections shall govern elections under the charter does not impose on the town recorder the duty of determining tie votes by lot in town elections, which is imposed on the county clerk in county and precinct elections by Hill's Ann. Laws, § 2539, since the charter provides neither that the town recorder shall be substituted for the county clerk in the application of the statute to the town, nor that the method of determining ties in county elections shall be adopted, instead of the different method prescribed in legislative elections.

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

Petition by H. W. Dunham against W. H. S. Hyde, recorder of the town of Marshfield, Coos County, Or., for a writ of mandamus. The writ issued, and defendant appeals. Reversed.

D. L. Watson and E. B. Watson, for appellant. P. H. D'Arcy, J. W. Bennett, and John F. Hall, for respondent.

BEAN, J. This is a mandamus proceeding to compel the defendant, as recorder of the town of Marshfield, to give notice to the petitioner and one Elrod, each of whom received an equal and the highest number of votes for the office of town marshal at the annual election held in December, 1896, requiring them to attend at his office, at a time to be appointed by him, for the purpose of having their right to the office determined by lot. Upon the filing of the petition, a peremptory writ was issued, and defendant appeals.

It is not claimed by the petitioner that it is made the duty of the defendant, by any particular provision of the charter of Marshfield, to take the proceedings demanded, but the contention is that it is imposed upon him by section 2539 of Hill's Annotated Laws, providing the procedure in the case of a tie in an election of county or precinct officers. Section 21 of the town charter provides that "all the laws of this state regulating and governing general elections and proceedings and matters incident thereto shall apply and govern elections under this act, except as herein otherwise provided"; and the argument is that, by this provision, section 2539 of the Code is incorporated into the charter as though recited in full. But the section referred to is a part of the general laws of the state providing the time and manner of canvassing the returns, and declaring the result of an election for state and county officers; and, since the manner of canvassing the returns and declaring the result of a town election is fully provided for in the charter, it may be well doubted whether the section in question is among the provisions of the general law regulating and governing 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 scope or operation so as to make it the duty of the recorder, in case of a tie in a city election, to take the same procedure required to be taken by the county clerk in case of a tie in the election of county or precinct officers. To do so would be enlarging, by construction, the powers and duty of the recorder much beyond the scope of the charter. If section 2539 is to be read into the charter, it would seemingly make the county clerk, and not the city recorder, the proper officer to preside over the decision by lot, and declare the result in case of a tie in a town election, if it can be said that a town officer is to be deemed a precinct or county officer, within the meaning of that sec

tion. Section 21 of the town charter does not purport to impose this duty on the city recorder, or to add to or enlarge his powers or duties in any manner whatever. His duties are specially provided in the charter, and no provision is made for his deciding or participating in the decision or determination of the result in case of a tie in the election of a city officer.

And, again, the general laws of the state regulating and governing elections contain different provisions for deciding a tie vote. Thus, where the vote is a tie on candidates for the legislature, the law requires that a new election be had; while in case of county or precinct officers it is to be decided in accordance with the provisions of section 2539. Now, if section 21 of the charter has the effect contended for, which of these provisions is to apply to the case in hand? It is true, a city marshal is not a member of the legislature, neither is he a county or precinct officer; and, before either of these provisions can be made to apply to a case like the one before us, the courts must do some judicial legislation under the guise of construction. But why pursue this subject further? Enough has been said, we think, to show that the law does not specially enjoin upon the defendant, as a duty resulting from his office, the performance of the act which it is sought to coerce by this proceeding.

For these reasons, it follows that the judgment of the court below must be reversed, and the cause remanded, with directions to dismiss the petition.

(34 Or. 1)

NICKERSON v. NICKERSON. (Supreme Court of Oregon. April 5, 1897.) APPEAL ABATEMENT.

An appeal by a husband from a decree for divorce, whereby the wife became entitled to one-third of his property, does not abate by his death, but survives to his heirs.

Appeal from circuit court, Linn county; H. H. Hewitt, Judge.

Action by Elizabeth M. Nickerson against Hugh Nickerson, in which there was a decree for plaintiff, from which defendant appealed. Both parties move to dismiss the appeal, on a suggestion of appellant's death. Denied.

N. M. Newport and M. C. George, for appellant. J. K. Weatherford, for respondent.

WOLVERTON, J. The plaintiff on January 27, 1896, obtained a decree of divoree against the defendant, and thereby the title to an undivided third of defendant's real property. The defendant sought a divorce, also, by cross bill, which was dismissed. After an appeal had been perfected, the defendant died, and both parties, by their respective attorneys, upon suggesting his death, filed motions to dismiss the appeal, but for very different purposes. Counsel for defendant claims that his death abates the suit,

and that this court should dismiss the appeal, with directions to the court below to dismiss the suit, so that the relation of the parties would then stand as if no suit had ever been begun or decree rendered, while the plaintiff claims that defendant's death abates the appeal only, and that the decree of the court below remains in full force and effect, as a final determination of the rights of the parties thereto. Neither position can be maintained. In Day v. Holland, 15 Or. 464, 15 Pac. 855, it was decided that under the code procedure an appeal from a decree does not break it up nor vacate it, and that it may be carried into execution notwithstanding the appeal, unless stayed by a supersedeas undertaking. We are aware that there is a strong dissenting opinion in the cause cited, wherein cogent reasons are given why the old equity practice should still prevail in that regard, notwithstanding the innovations of the Code; but we feel bound by the prevailing opinion, and are constrained to follow it as a precedent. It is provid, ed by statute that "no action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue"; and that "an action for a wrong shall not abate by the death of any party, after the verdict has been given therein, but the action shall proceed thereafter in the same manner as in cases where the cause of action survives." Hill's Ann. Laws Or. §§ 38, 39. These appear to be all the statutory provisions pertaining to the subject. It is quite apparent, from the very nature of things, that the cause of suit does not survive the death of a party where the only relief sought is a dissolution of the marriage relations, for death effectuates more surely the very end which it is the especial purpose of the suit to accomplish. As was said by Cotton, L. J., in Stanhope v. Stanhope, 11 Prob. Div. 103, 105, "It would be a singular thing, if, after the marriage had been dissolved by death, there were power to declare it at an end on another ground." The authorities are uniform upon this proposition. See Barney v. Barney, 14 Iowa, 189; Wilson v. Wilson, 73 Mich. 620, 41 N. W. 817; Kirschner v. Dietrich, 110 Cal. 502, 42 Pac. 1064; Pearson v. Darrington, 32 Ala. 253; McCurley v. McCurley, 45 Am. Rep. 720. But, where the consequences of the divorce are such as affect the property rights of the parties to the suit, the heirs or personal representatives may have such an interest in the litigation as that the cause will survive, not for the purpose of continuing the controversy touching the right of divorce within itself, but for the ascertainment of whether the property has been rightfully diverted from its appropriate channel of devolution. The present case furnishes a good illustration. Had the defendant died prior to the divorce, his real property would have descended to his heirs, subject to his widow's

right of dower, but under the decree she obtains an undivided one-third interest absolute therein,-results of very different significance. So that the heirs have an interest in continuing the controversy, to determine whether they have been rightfully or wrongfully affected in their property rights. See Thomas v. Thomas, 57 Md. 504; Downer v. Howard, 44 Wis. 82. It has been suggested that the relief which the statute affords, by giving the prevailing party in the suit one-third interest in the lands of the spouse, is but an incident to the divorce, and operates as a penalty for a violation of the marital relations. And so it is, but it does not follow that the suit, after divorce granted, or even that the appeal, abates upon the death of a party thereto. At common law the general rule is that criminal actions abate with the death of the accused, but if the crime be that of treason or felony, which works an attainder, the heirs or personal representatives may prosecute an appeal to reverse the attainder,-State v. Martin (Or.) 47 Pac. 196,-although the forfeiture is but an incident of the action. The cause was permitted to survive to prevent a wrongful devolution of the property of the deceased should It appear that the judgment of attainder was erroneous. The analogy is apparent without elucidation. The clause of the statute preventing either party from contracting marriage with a third until the period allowed for the appeal has expired is a wise precautionary measure to prevent the evil results which might arise from conflicting marriage relations should the decree of the court below be reversed, but was not intended to suspend the decree. Such a decree has the "effect to terminate the marriage," and its finality must be governed and determined by the same rules as are applied in other suits in equity. From these considerations, we conclude that the suit did not abate by the death of the defendant, except as it pertains to the cross bill, neither does the appeal, but that the cause and the appeal both survive to the heirs of the deceased, and they may prosecute the cause in this court for the purpose of determining whether the divorce was rightfully granted, to the end that conflicting property rights, as between them and the plaintiff, may be settled and determined. Both motions will therefore be disallowed.

(30 Or. 569) MCELVAIN v. BRADSHAW, Circuit Judge, et al. 1


The discretion of the court in refusing to settle and sign a bill of exceptions in a criminal case, after the expiration of the time fixed, and in the absence of any previous application for an extension of time, cannot be controlled by mandamus, on the ground that appellant's de fault arose from his inability to obtain a copy

1 Rehearing pending,

of the official report of the trial, and his mistaken belief that 60 instead of 30 days had been allowed in which to present said bill.

Mandamus by M. E. McElvain against W. L. Bradshaw, circuit judge, and others. dismissed.


Dufur & Wilson, for plaintiff. C. M. Idleman, Atty. Gen., and A. A. Jayne, for defendants.

BEAN, J. This is an original proceeding in this court, by mandamus, to compel the judge of the Seventh judicial district to settle and sign a bill of exceptions in a criminal action. The facts, as shown by the alternative writ, answer, and accompanying affidavits, so far as material to any ques tion before us, are, in substance, that on October 6, 1896, the petitioner was convicted in the circuit court for Sherman county of the crime of forgery, and on the following day sentenced to the penitentiary for the term of two years. During his trial, numerous exceptions were taken to the rulings of the court, but they were not reduced to writ ing at the time, and his counsel asked for and was allowed 30 days after the term in which to prepare and tender a bill of exceptions, but they allowed it to expire without doing so. Thereafter, and on the 1st of December, 1896, what purports to be a bill of exceptions, a copy of which is annexed to and made a part of the petition, was tendered to the trial judge; but he refused to settle or allow it, because, as stated in his answer to the alternative writ, "the plaintiff and petitioner herein and his attorneys, and each of them, had been guilty of carelessness, and that the court had no right to excuse such carelessness on the part of the attorneys in reference to the order of the court, as it would destroy the effect and power of the orders of the court, and place a premium on carelessness," and "that the plaintiff and petitioner, nor his attorneys or either of them, have never applied to or asked this defendant for an extension of the time within which to prepare and present said bill of exceptions, but have carelessly and negligently allowed the time to go by, without preparing or presenting the same, or asking for an extension of time in which to do so, and that this defendant was at all 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 willing, upon a proper showing, to have extended the time within which said bill of exceptions could have been presented, but the plaintiff and petitioner, and his attorneys, and each of them, wholly disregarding said order, carelessly and negligently failed and refused to prepare and present said bill of exceptions within the time fixed by said order, or to ask within said time for an extension of time in which to do so."

It is well settled that mandamus lies in a proper case to compel a trial judge to settle

[ocr errors]

and sign a bill of exceptions, but not to direct him what to put in such bill where there is any controversy as to what it should contain. Elliott, App. Proc. § 516; 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 held 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 power 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, if 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

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 defendant 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.

(31 Or. 450)

SABIN v. WILKINS et al.1



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 absence of a showing that he was permitted, with the knowledge of his wife, to conduct the bustness 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 mortgage on a stock of goods, before giving the mortgage, 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 S. N. Wilkins and others. From a judgment for plaintiff, defendants appeal. Reversed.

✔ Rehearing pending.

« PreviousContinue »