101 P. 215 | Or. | 1909
Opinion by
This is an appeal by the defendant S. P. Conroy from an order denying a motion to set aside the decree rendered herein, and to permit an answer to be filed. H. F. Dietzel commenced this suit in the circuit court for Crook County to secure from Conroy a dissolution of a partnership, and to obtain from the Madras Milling & Mercantile Company a part of its capital stock, which was to have been issued in payment of the goods of the firm that were sold and delivered to it.
The complaint states that, in order to effect a settlement of the partnership accounts, Dietzel and Conroy sold and delivered the property of the firm to the corporation for a consideration of about $6,000, which, when ascertained, was to be evidenced by capital stock of the company of the par value of the merchandise, but that the stock was never delivered nor was a full settlement therefor ever made; that Conroy made false entries in the partnership books, and fraudulently withdrew money from the firm, whereby it became indebted to the plaintiff in the sum of $5,967.76 in excess of the amount to which Conroy is entitled; that Conroy is insolvent, in consequence of which the plaintiff is liable for an outstanding indebtedness against the firm of $285; that the value of the goods so sold and delivered being insufficient, after the firm debts are paid from the proceeds thereof, to discharge the plaintiff’s demand, he is entitled to receive the entire stock specified.
Conroy on April 15, 1907, tendered a verified answer and moved to set aside the decree, and in support of the application filed his affidavit, which contains an exhaustive review of his dealings with the plaintiff and with the corporation. Much of the matter thus detailed will be omitted, and reference will be made only to such parts of the sworn declaration as apparently explain the failure to file an answer within the time required. The affidavit states that, after the goods were secured by the corporation, it became financially involved, whereupon R. L. Sabin took possession of all its property for the purpose of liquidating its obligations; that, conspiring with Dietzel, Sabin caused the sheriff of Crook County, without authority of law, to eject the affiant from the store of the corporation which he unlawfully closed; that they wrongfully persuaded that officer falsely to arrest and imprison the affiant, for the purpose of intimidating him and causing him to leave the county, whereby they were enabled to convert such property to their own use, and to his ruin; that, in order to protect his interests, he retained competent counsel who interposed the demurrer mentioned, and who, after Sabin had taken possession of such property, received from plaintiff’s attorneys a letter, of which the following is a copy, to-wit:
“The Dalles, Oregon, April 28, 1906. “A. King Wilson, Atty. at Law, Portland, Oregon.
“Dear Sir: Referring to the case of Dietzel v. Conroy, will say that from what I can find out here there will probably not be anything left, or at least can say it is likely there will (not) be anything left of the property*449 of the Madras Milling & Mercantile Company over which to litigate; and the question is, do you wish to have the case stand as it is until we see whether we have anything to fight over, or go ahead and have it tried out? This being an equity case, I presume nothing further than preliminary matters would be disposed of at the coming term of court, and I thought that if you were not going to Prineville anyway, we might arrange to let the matter stand over until the next term of court and see what the outcome would be. Of course, you know I will have to go to Prineville anyway, and if you are there too we might as well dispose of the demurrer or any other preliminary motion with a view to getting the case at issue, as it would not be a great extra expense; but if Mr. Conroy is to be to the expense of sending you up there, why I am willing to make it so that he will be saved that expense for the present. Awaiting your further answer, I am,
“Yours very truly,
[Signed] “Menefee & Wilson.”
Conroy further deposed that a regular term of the circuit court for Crook County was held at Prineville in May, 1906, at which session counsel for the respective parties were in attendance, and it was then mutually understood by them, that the demurrer referred to should remain undisposed of until Sabin had sold sufficient goods of the corporation to enable him to pay its debts; that affiant was informed of such understanding, and assured that nothing would be done in this suit to his prejudice without notifying his counsel; that, relying upon such information . and believing the assurance, affiant accepted employment at Victoria, British Columbia, and that his attorneys were not notified, nor did he know, that the demurrer had been overruled or that the decree had been taken until February, 1907, when he returned to Oregon. Conroy’s sworn declaration is corroborated by the affidavits of his then attorneys, A. King Wilson and O. A. Neal, who severally deposed that it was his understanding that no further action would be taken in this suit without notice, arid that no intimation
Frank Menefee, one of plaintiff’s attorneys, filed an affidavit wherein he states that after carefully computing the indebtedness of the corporation, and ascertaining the value of its assets, it appeared to him that upon the payment' of its obligations there would be but' little of its property remaining, and, based upon such estimate, he wrote Conroy’s attorney as hereinbefore indicated; that such letter contains the only understanding or agreement ever, attempted to be made between counsel- for the parties, except that at Prineville in May, 1906, affiant conferred with A. King Wilson with reference to having the judge pass upon the demurrer in vacation; that, after nearly all the property had been sold, affiant estimated that, upon the payment.of the debts of the corporation, a few hundred dollars would probably remain, thereby necessitating a trial of this suit, and, having seen Mr. Wilson in the summer of 1906, he informed him of these facts and inquired what disposition he expected to make of the demurrer, and was informed by Conroy’s attorney that he had never received any fee in the case, and that his. client, having had some trouble in Portland, had gone to Victoria and might not return; and that Wilson further said to affiant that, if he desired to take up the demurrer and to try the case, he could do so whenever he pleased, thereby indicating that he did not desire or expect further to appear in the cause. Menefee’s affidavit in respect to what Mr. Wilson said in relation to any further appearance in the cause is corroborated by the sworn declaration of Glen O. Allen.
Dietzel filed an affidavit, to the effect that after possession of the property of the corporation had been taken, to satisfy its debts, Conroy was deposed as one of its officers, and thereafter, at midnight, he unlawfully broke and entered its store with intent to take and carry away therefrom the goods, whereupon he was arrested in the
Based on these affidavits the motion was denied, and, to review the action of the court in this respect, Conroy brings the cause into this court.
It follows that the decree should be affirmed; and it is so ordered. Affirmed.