15 Or. 464 | Or. | 1887
Lead Opinion
This is an action to recover damages for a malicious trespass on real property, alleged to have been committed in said county of Multnomah on the sixth day of October, 1886. The actual damage alleged was sixty dollars, but by reason of the alleged malice of the defendants, and the aggravated circumstances of the trespass, the plaintiff claimed damages in the sum of one thousand dollars. Upon a trial before a jury she was awarded the sum of six hundred dollars. From that judgment this appeal is taken. The cause was tried on the twenty-sixth day of February, 1887.
It is claimed by the appellant that this decree was competent evidence for either one of two purposes: (1) That it constituted a full and complete justification for all of the alleged trespasses charged in the complaint; or (2) that it was competent evidence to be submitted to the jury tending to negative and disprove malice. The jurisdiction of this court is appellate and revisory only. It can exercise no original jurisdiction. Article vii.,
The same statute regulates the method of appeals in both actions at law and suits in equity. The only distinctions which it makes in the two classes of cases is, that if the appeal be from a decree, the appellant need not specify in the notice of appeal the grounds of error upon which he intends to rely, and if the evidence has been taken in writing, the cause shall be tried anew upon the transcript and evidence accompanying it. If the evidence has not been taken in writing in the court below, an equity case is re-examined here only upon the exceptions which were taken in the court below. The first question, therefore, is, what effect did the appeal have upon the decree in said cause? "Was the decree in question vacated and broken up by the appeal so that it ceased to be binding upon the parties, or was its enforcement stayed pending the appeal by force of section 539 of Hill’s Code, and what was the effect of such “stay,” if it existed? In such a case as this, the statute has not declared the effect of an appeal during its pendency upon the decree; we are therefore compelled to examine the question on reason and authority outside of the State.
In Dutcher v. Culber, 23 Minn. 415, it was held that where the statute provides that a party may appeal, no certain inference can be drawn from the term “appeal” alone as to its effect upon the proceedings below; and that in determining what effect was, the court might properly look at the general policy of the law of appeals as furnishing a valuable analogy, and to the practical consequences of giving to the appeal the effect to stay proceedings below, or the contrary effect. Apply this view to the case, the court was of the opinion that the appeal from the order of the probate court did net vacate or suspend the operation of the order. The case of Sixth Avenue R. R. Co. v. The Gilbert Elevated R. R. Co. 71 N. Y. 430, involved, as I think, the precise question presented by this record. In that case, as here, the final decree enjoined the defendants from doing
So in Nill v. Camparet, 16 Ind. 107, it was held that the only effect of an appeal to a court of error, when perfected, is to stay execution upon the judgment from which it is taken. In all other respects, until annulled or reversed, the judgment is binding upon the parties as to every question directly decided. So in Cain v. Williams, 16 Nev. 426, it was decided that the pendency of an appeal, when the appellate court has no other duty than to affirm, reverse, or modify the judgment appealed from, does not suspend the operation of the judgment; the judgment is good until set aside: So, also, in Swing v. Townsend, 21 Ohio St. 1, it was held that the appointment of a receiver, while the cause is in the common pleas, is not vacated or suspended by an appeal to the District Court, and the powers and duties of the receiver will continue, notwithstanding the appeal. These cases also are to the same effect: Lewis v. St. Louis etc. R. R. Co. 59 Mo. 495; Orleans v. Platt, 99 U. S. 676; Burton v. Burton, 28 Ind. 342; Merchants' Ins. Co. v. De Wolf, 33 Pa. St. 45; Farmers’ L. & T. Co. v. Cent. R. R. Co. 4 McCrary, 546; Allen v. Mayor and Aldermen of Savannah, 9 Ga. 286; Chase v. Jefferson, 1 Houst. 257; Swydam v. Hoyt’s Adm’r, 1 Dutch. 130; 2 Dan
In reaching the conclusion indicated by these authorities, we have not overlooked the distinctions which existed prior to the enactment of the Code between the effect to be given to an appeal and the suing out of a writ of error. But such distinctions are swept away by the Code. The entire procedure is now governed by one statute, and no sufficient reason appears to us for making the distinction claimed by the respondent. This very case is a good illustration why such distinction should not be tolerated or recognized. In the original case of Holland v. Day, as has been shown, a final decree was entered in favor of the plaintiff, adjudging her to be the owner of the premises then in dispute, and perpetually enjoining the defendant from claiming the same, or in any manner interfering with the plaintiff’s peaceable enjoyment of the same, from which decree the defendant appealed. After the entry of that decree the plaintiff present defendant, undertook to enter under it, and was resisted, and for that alleged wrong this action is brought, in which the plaintiff is awarded six hundred dollars damages. Upon the appeal in said suit, this court affirmed the decree of the court below, so far as the particular premises in controversy in this action are concerned, so that it is apparent that this defendant is mulct in six hundred dollars damages and costs for an attempted entry on her own premises under a valid and unreversed decree of the Circuit Court of Multnomah County. A construction which may produce such results is unsound, and cannot receive the sanction of this court.
Our attention has been called to the latter part of section 514 of Hill’s Code, which provides: “ An action or suit is deemed to be pending from the commencement thereof until its final determination upon appeal, or until the expiration of the period allowed to take an appeal.” But this section has no direct bearing upon the question involved here. To adopt the respondent’s construction of this section would be to hold, in effect, that
It is claimed by respondent’s counsel that under section 539 of Hill’s Code, this decree was stayed by the appeal without the usual undertaking. But this does not affect the result. The “stay” in either case would only prevent the enforcement of the decree so far as it required the enforcement- of the payment of money. The other part of the -decree needed no -enforcement. It operated upon the status of the thing, and fixed it irrevocably, unless changed on appeal.
In this class of cases, the usual and ordinary measure of damages is the amount which will fully compensate the plaintiff for the actual injury which he has sustained; but where a tort is committed with a bad motive, or so recklessly as to imply a disregard of social obligations, and generally when the defendant appears to have done the act wantonly, maliciously, or wickedly, the jury may, in their discretion, give exemplary damages. But to enable them to act intelligently and justly in such case, it is
These considerations lead to a reversal of the judgment; but inasmuch as the decree offered in evidence furnished a complete justification for the entry complained of, we think it unnecessary to order a new trial.
Dissenting Opinion
dissenting. — At common law, a writ of error was the appropriate remedy, by which a party aggrieved by the judgment of an inferior jurisdiction could remove the judgment for examination into a superior tribunal, having jurisdiction to revise it. It lies for some supposed mistake in the proceeding of a court of record, and only upon matters of law arising upon the face of the proceedings. (3 Blackst. Com. 406.) It was defined as “a commission by which the judges of one court are authorized to examine a record upon which a judgment was given in another court, and on such examination, to affirm or reverse the same according to law.” (Cohens v. Virginia, 6 Wheat. 409; Jaques v. Cesar, 2 Saund. 101, notes 1, 2; Tidd’s Practice, 1134.) The writ was grantable, in civil cases, ex debito justice, in criminal cases, ex gratia regis.
The distinction between an appeal and a writ of error is that an appeal is a process of civil-law origin, and removes the cause entirely, subjecting the fact as well as the law to a reviéw and revisal; but a writ of error is of common-law origin, and it removes nothing for re-examination but the law. (Wiscart v. D’Auchy, 3 Dall. 321; United States v. Goodwin, 7 Cranch, 111.) It is said to have been taken from the civil law and introduced
The tendency during the last half century has been to assimilate proceedings in equity and law cases; and in States where the modern Code prevails, the proceeding by which judgment is reviewed in the appellate court is generally known as an appeal, although in effect it is more like a writ of error than an appeal. (Sharon v. Hill, 26 Fed. Rep. 345.) Now to which extent has these two modes of review, as thus distinguished, been modified by statute regulation in our Code? In the practice codes of many of the States, the old forms of action have not only been
In this State the distinction between the forms of action at law has been abolished; but proceedings in equity are still kept distinct from an action at law. (Burrage v. B. G. & Q. M. Co. 12 Or. 172.) “Our Code,” said Thayer, J., “presumes the forms of action and suits as distinct from each other” (Beacannon v. Liebe, 11 Or. 443); and also in the result reached after trial, the distinction of judgment or decree is still preserved. For the review of a judgment or decree, the Code, has made ample provision, and the proceeding is known as an appeal. (Hill’s Code, §§ 525-537, inclusive.)
In actions at law upon appeal, it is necessary to specify the grounds of error relied upon, but not so when from a decree in equity. When the appeal is from a judgment in an action at law, the judgment can only be reviewed as to questions of law appearing on the transcript, and is only to be reversed or modified for errors substantially affecting the rights of the appellant; but upon an appeal from a decree, the suit is required to be tried anew upon the transcript and evidence. And in either case, whether of a judgment or decree, if a stay of proceedings is denied during the pendency of the appeal, an undertaking or bond is required to be given to effect that result. The object of the stay is to prevent the execution of the judgment or decree pending the appeal, and when this is affected by a proper bond, it operates to suspend the right to execution; but in the absence of a statute regulation, leaves the judgment, until annulled or reversed, subject to the common-law rule, binding and conclusive on the parties as to every question directly decided, and the decree inoperative for any purpose whatever during that time.
The provisions of the Code which we are now considering do not undertake to declare or prescribe what effect shall be given to a judgment or decree pending the appeal. In all this, however, it will be noted that the appeal from a judgment at law under our Code of practice corresponds more nearly with the writ of error, and in effect is more like it than appeal; while an appeal from a decree in equity, in bringing up the whole record
The present discussion, however, has called our attention to a provision of the Code which has hitherto been overlooked by me. I refer to section 505, which provides that “an action or suit is deemed to be pending from the commencement thereof until its final determination upon appeal, or until the expiration of the period allowed to take an appeal.” What does this mean, if not to say that, while an action or suit is pending, no judgment or decree rendered therein is conclusive on the rights of the parties until finally determined on appeal, or until the time for appeal has passed? If the action or suit is to be deemed pending until finally determined on appeal, it is still under judicial consideration during such pendency, and not judicially determined. It is impossible that an action or suit should be pending, that is, under judicial consideration, and at the same time be res adjudícala, or a final determination, which is conclusive on the right of the parties. It is a contradiction of terms to say that a matter in litigation is pending, undecided, and at the same time is decided and res adjudícala. With the exception of Cali
In that State, section 1049 is identical with our own, and has been construed by an eminent judge of that State to mean that a case upon an appeal is still pending — still mb judice — until finally decided, and cannot, therefore, during such pendency, be regarded as res adjudicatei, or having any effect as evidence. In Sharon v. Hill, 26 Fed. Rep. 722, Mr. Justice Sawyer, referring to section 1049 as expressly providing that “an action is deemed pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed,” says: “ By the express terms of this section, therefore, a judgment is not final as to the subject-matter — is not a final or conclusive determination of the rights of the parties — not only until the final determination on appeal,” but where no appeal has been taken, “until the time for appeal has passed. Until the time indicated, the action is deemed to be pending; that is to say, remains inconclusive, not finally determined, and liable to be changed or altogether vacated and annulled. The action is therefore still pending, and the subject-matter remains sub judice.” And again: “ By the express terms of the statute the action is still pending and undetermined. The litigation of the matter is not ended. It is still flagrant. The subject-matter is still sub judice, and a matter still sub judice cannot possibly be res adjudicada in any proper sense of that phrase. To say that a matter sub judice is at the same time res adjudicatav/oxúd be a contradiction of terms. The two conditions with reference to the same subject-matter cannot possibly be found to exist.” After showing that the effect of an appeal upon a judgment as res adjudicad had been previously settled by the decisions of the Supreme Court, independently of the provisions of the Code referred to, he then adds: “But there can be no possible doubt, it seems to us, under the provisions of the present Code cited, that a case upon appeal is still pending — still sub judice — until finally decided, and that it cannot be regarded as res adjudicata, or as having any effect as evidence. The effect or value of a judgment is therefore fixed by the Code and the decisions of the
As section 505 applies both to actions and suits, if this be its proper construction — its meaning and purpose — it affects judgments and decrees alike, and not only stays their execution pending an appeal, but suspends their operation for all purposes, so that neither is admissible in evidence in any controversy between the parties. It reverses the common-law principle as to the conclusive effect to be given to a judgment, until annulled or set aside by the appellate court. In legal parlance, the word “pending” means nothing more than “remaining undecided” (Cleandening v. Allen, 4 N. H. 385; 48 N. H. 210); and if the subject-matter in litigation between the parties is pending during an appeal, it is undecided, not finally determined, but subjudice, and not res adjudicata, and therefore cannot have any effect as evidence, or operate as a bar or estoppel.
In the absence of this provision, our statute substantially preserves the distinction as it existed at common law as to writs of error and trials de novo in equity upon appeal, and it occurs to me there are many reasons why the distinction should still be preserved, and would be the better rule of practice. But our duty is not to make the law, but to expound and declare it; and in the light of the construction given to section 505, and that seems to me to be its plain purport and meaning, I am constrained to think that the court committed an error in excluding the decree as evidence, res adjudícala, as to the rights of the parties. In the course of the argument something was said as to a late act of the legislature authorizing parties in suits of equity, if they so preferred and consented, to try the case as an action at