69 P.2d 964 | Or. | 1937
This is an appeal by W.C. Stumberg, Tekla Stumberg and the Comet Land Company, a corporation, three of the defendants, from a decree of the circuit court which granted judgment against the estate of Thomas F. Ryan, deceased, one of the defendants, upon a promissory note signed by it, and ordered the foreclosure against all of the defendants, including these three, of a real estate mortgage executed by the estate. The complaint alleged that the three defendants, who are the appellants, claimed some interest in the land inferior to the interest of the plaintiff.
The note, mortgage and parties now before us are the same as those in Bank of Commerce of Oregon City v. Ryan,
After the cause was remanded to the circuit court the three defendants above named, to whom we shall refer as the appellants, tendered for filing an amended answer and moved for privilege to file it. Its admissions and denials were the same as in the original answer. It averred in detail the tax foreclosure proceedings adverted to in the second cause of suit, alleged that they had resulted in a deed to the two Stumbergs, and that the latter later conveyed the property to the Comet Land Company which was described as owner of the property. The proposed answer then concerned itself with the status of the plaintiff. It alleged: "There is not now nor has there been since the 31st day of August, 1931, any such entity having any existence whatsoever as is named and described in the complaint as `The Bank of Commerce of Oregon City, Oregon, a banking corporation'; that in truth and in fact the Bank of Commerce of Oregon City, Oregon, a banking corporation, went out of existence on the 31st day of August, 1931." It further averred that April 9, 1931, the superintendent of banks of this state filed in the circuit court a proceeding for the liquidation of the plaintiff; that on June 19, 1931, the court, upon his petition, authorized the sale of its assets; that August 31, 1931, the circuit court entered an order which, after reciting completion of the liquidation of the assets, stated: "The liquidation of said bank is hereby declared to be and the same is closed." These averments are followed with a declaration: "Said Bank of Commerce of Oregon City, Oregon, was on the 31st day of August, 1931, wholly and entirely dissolved and terminated for all purposes whatsoever." *235 This motion was denied, and on July 2, 1936, a decree was entered in conformity with the mandate of this court. It found that the Stumbergs had paid taxes upon the property to the extent of $474.15; that interest upon the same created a total of $521.04; that deduction of $184.80 costs, to which the plaintiff was entitled, left a balance owing to the Stumbergs amounting to $336.24, and directed the court's clerk to pay it to the appellants out of a deposit of $500 made by the plaintiff at the time it filed its complaint.
In August, 1936, the appellant moved to vacate the decree by a motion which mentioned that at the time of its entry "The Comet Land Company had a deed to said property" but which was based upon a contention that at the time of the decree's entry, as well as at the time of the filing of the complaint, the plaintiff had been dissolved. Accompanying the motion was a statement of good faith signed by defendants' counsel in which he stated: "No provision has been made for any liquidating committee to carry on the business and wind up the affairs of said bank." The plaintiff thereupon filed affidavits of the former officers of the bank showing that a liquidating committee had been appointed, that the superintendent of banks had approved its personnel, and that this committee, in cooperation with the superintendent, had performed the duties imposed upon it. No counter showing was made. August 31, 1936, this motion was allowed. In September, 1936, the plaintiff moved the court to reconsider its action in allowing appellants' motion. October 27, 1936, the court vacated its order of August 31, 1936, and reinstated the decree of July 2, 1936.
It is elementary that upon the remand of this cause to the circuit court by us it was the duty of the former to obey the mandate; otherwise litigation would *236
never end: Simmons v. Washington F.N. Ins. Co.,
The appellants' assignments of error do not include any contention that the circuit court erred when it denied their motion for leave to file the part of the answer alleging the Comet Company's tax title. Moreover, as Mr. Justice RAND very clearly pointed out in the first decision, the complaint invited all of the defendants to set forth any title or interest any of them claimed in the land. None did so. After the first decision it was too late.
All other matters pressed upon our attention at this time are fully disposed of by our former decision.
It follows that the decree of the circuit court is affirmed.
BEAN, C.J., and BAILEY and RAND, JJ., concur. *238