126 P. 608 | Or. | 1912
delivered the opinion of the court.
This is a motion to recall a mandate. An action of forcible entry and detainer was instituted by the defendants herein to recover the possession of a building. The defendants in that action upon filing their answer therein also as plaintiffs filed a complaint herein in equity in the nature of a cross-bill, whereupon the proceedings at law were immediately stayed, and the cause was thereafter treated as a suit in equity. Issue was joined on the cross-bill, and, a trial being had, the suit was dismissed, but the final decree made no provision respecting any proceedings in the law action. From the dismissal of the suit the plaintiffs appealed, and, pursuant to an order of the trial court, the undertaking on appeal stipulated inter alia that the plaintiffs and their sureties would pay to the defendants the value of the use and occupation of the demanded premises until the delivery of the possession thereof, not exceeding the sum of $600. The appeal having been tried, the decree was affirmed, whereupon a mandate was sent down directing the trial court to ascertain, by proper proceedings, the value of the use and occupation of the building from the time of the original decree, and to award a recovery of the sum so to be determined against the plaintiffs and their sureties.
It is maintained by plaintiffs’ counsel that the direction alluded to is unauthorized, and, this being so, the mandate should be recalled and the language complained of eliminated. The question suggested challenges the power of a trial court, when the recovery of the possession of real property is not adjudged, to prescribe the amount of an undertaking on appeal so as to include the value of the use and occupation of premises pending a review of a cause, and involves the procedure to be observed when a suit in equity, instituted to stay proceedings in an action at law, is dismissed.
Although an equitable defense is not thus available, a defendant in a law action who desires to show why the plaintiff should not recover or establish what he seeks therein is not wholly remediless, for another regulation, as far as material herein, reads:
“In an action at law, where the defendant is entitled' to relief, arising out of facts requiring the interposition of a court of equity, and material to his defense, he may, upon filing his answer therein, also as plaintiff, file a complaint in equity, in the nature of a cross-bill, which shall stay the proceedings at law, and the case thereafter shall proceed as in' a suit in equity, in which said proceedings may be perpetually enjoined by final decree, or allowed to proceed in accordance with such final decree.” Section 390, L. O. L.
The procedure thus authorized is somewhat analogous to the early practice which prevailed in courts of equity of issuing injunctions to control proceedings at law, or to stay the enforcement of judgments rendered therein, in which cases the inhibition did not apply to the law courts, but was directed to the parties litigant therein who were governed by the mandatory writ. 2 Story’s Eq. Juris. (13 ed.) § 875. The clause of the statute quoted does not strictly comply with the original practice in that the issuance of a restrictive writ is not essential, since the mere filing of a complaint in the nature of a cross-bill
“An appeal being merely the act of the party cannot of itself affect the validity of the order of the court, nor can it give life and force to an injunction which the court has decreed no longer exists. It follows, therefore, that an appeal from a decree dissolving an injunction cannot have the effect of reviving the injunction and of continuing in force by the mere act of the party appealing a judicial order which has been set aside.” High, Inj. (3 ed.) § 1709.
“If the judgment or decree appealed from be for the recovery of the possession of real property, for a partition thereof, or the foreclosure of a lien thereon, that during the possession of such property by the appellant he will not commit, or suffer to be committed, any waste thereon, and that if such judgment or decree or any part thereof be affirmed, the appellant will pay the value of the use and occupation of such property, so far as affirmed, from the time of the appeal until the delivery of the possession thereof, not exceeding a sum therein specified, to be ascertained and fixed by the court or judge thereof.” Section 551, subd. 2, L. O. L.
Believing that the order of the trial court requiring the plaintiffs and their sureties to give an undertaking on appeal conditioned to pay the defendants the value of the use and occupation of the building during the
Mandate Recalled and Corrected.