77 P. 902 | Or. | 1904
after stating the facts in the above terms, delivered the opinion of the court.
1. It is insisted that the court had no power at a subsequent term to vacate or modify the judgment rendered in February. The statute provides that the court may, “in its- discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect”: B. & C. Coinp. § 103. A judgment rendered against a party contrary to an understanding or agreement with • his adversary is taken against him by “surprise,” within the meaning of this section: Thompson v. Connell, 31 Or. 231 (48 Pac. 467, 65 Am: St. Rep. 818). The judgment in this case was rendered in pursuance of a stipulation of the parties, and, if contrary thereto, was within the principle announced, and defendant may obtain relief therefrom under section 103.
2. The remaining question is whether the plaintiff is entitled to include in her judgment, as an item of damages, interest on the value of the stock belonging to her, and wrongfully and unlawfully converted by the defend
3. Although, therefore, the stipulation did not expressly provide for interest on the value of the stock'converted, the plaintiff was entitled thereto as a matter of law, as an item of damages caused by the conversion. The stipulation and the decision in the Weinhard Case settled plaintiff’s right to a judgment against the defendant for the unlawful conversion by it on May 5,1897, of 73 shares of stock, of the then value of $30 per share, and the law fixes the amount of the recovery at the value of such shares and interest. It is true, interest is not recoverable as such on an unliquidated claim until the amount thereof is ascertained: Pengra v. Wheeler, 24 Or. 532 (34 Pac. 354, 21
The order of the court made in April, 1904, modifying the judgment previously rendered, will be reversed, and the cause remanded, with directions to overrule defendant’s motion to vacate such judgment. Reversed.