404 P.2d 188 | Or. | 1965
The plaintiff, Magnolia Lumber Corporation, Inc., heretofore filed a motion to dismiss this appeal which was denied without opinion, but with leave to renew on argument. The motion was renewed.
In July, 1961, plaintiff Magnolia commenced suit to foreclose its mortgage upon property of the defendant Lithia Lumber Company, Inc. The trial court entered a decree foreclosing the mortgage and the defendant Lithia has appealed.
The basis of the plaintiff’s motion is that Magnolia Lumber Corporation recovered a money judgment against Lithia; that subsequent to the entry of the judgment and appeal Magnolia Lumber Corporation, as defendant, in its answer in an action brought by Lithia against Magnolia set up the judgment in Magnolia v. Lithia as a setoff against the claim of Lithia, and, therefore, the defendant Lithia “has adopted, ratified and affirmed said decree, claimed the benefit thereof, and relied thereon as being its just obligation and valid debt” by proceeding to trial in the case of Lithia v. Magnolia.
To support this motion, plaintiff has filed in this court copies of the pleadings and judgment in the case
The journal entry of judgment entered in that ease discloses that the jury found for the plaintiff Lithia Lumber Company against It. Drew Lamb, et ah, damages in the sum of $1,740,000, and also found that Lithia Lumber Company was indebted to Magnolia Lumber Corporation in the sum of $404,602.48.
It is clear from the pleadings that the plaintiff herein thrust the issue of the prior judgment entered in the mortgage foreclosure into the issues of the Lithia Lumber Company v. R. Drew Lamb, et ux., the Magnolia Lumber Corporation, et al., over the objection of Lithia in that litigation. Under such circumstances, Lithia could do no more than meet the issues presented in the trial of the ease. A party required to recognize the existence of a prior decree from which they have appealed and to act accordingly in another action after objecting to relitigating that prior decree cannot be said to have acquiesced in the prior judgment from which an appeal has been taken. Pac. Gen. Contrs. v. Slate Const. Co., 196 Or 608, 251 P2d 454.
The motion is denied.