157 P. 1107 | Or. | 1916
Lead Opinion
Plaintiffs move to dismiss this appeal for the reason that the judgment appealed from was rendered by consent. They commenced an action against defendant L. M. Moore, doing business as L. M. Moore & Co., for the collection of $581.15. An attachment was issued and levied upon certain property, whereupon the defendant executed a bond for its release under Section 311, L. O. L., with the Illinois Surety Company as surety thereon. Two other actions were instituted by the same plaintiffs against
“Statutes authorizing summary remedies on forthcoming, delivery or dissolution bonds are to be strictly construed, and are available only where the bond is such as the statute contemplates; and one who seeks to enforce the liability of the obligors in this manner must comply, at least substantially, with the requirements of the statute in respect to all things which must be done in order to make the statutory remedy available.”
It is indicated that the summary remedy provided by Section 308, L. O. L., does not prohibit nor impair the effect of any legal defense: 6 C. J., p. 353, § 753; Dunlap v. Clements, 18 Ala. 778; Hayman v. Hallam, 79 Ky. 389. It is well settled that a party who consents that a judgment or decree be rendered against him cannot change his mind and appeal from the judgment: Plinsky v. Nolan, 65 Or. 402 (133 Pac. 71); East Side Mill & Lbr. Co. v. Feldman, 77 Or. 644 (152 Pac. 266); Lengele v. Moore, 77 Or. 647 (152 Pac. 267). For a litigant to consent that a judgment be rendered against another party, as in the case at bar, is quite a different thing. If the surety by his undertaking consents that a judgment be rendered against him, in the absence of fraud or collusion, it may be entered without notice: Andres v. Schlueter, 140 Iowa, 389, 393 (118 N. W. 429). The question raised is so closely allied to the case upon the merits that it should not be finally passed upon without a full hearing. The motion to dismiss will therefore be denied, with the
Motion Denied.
Argued March 8, appeal dismissed March 26, 1918.
Opinion on the Merits
On the Merits.
(171 Pac. 587.)
For appellant there was a brief and an oral argument by Mr. Thomas Mannix.
For respondents there was a brief over the name of Messrs. Senn, Ekwall & Recken, with an oral argument by Mr. Frank S. Senn.
Department 2.
Counsel for plaintiff and respondent filed a motion to dismiss the appeal for want of jurisdiction. A statement of the facts and- a memorandum of the former consideration of the - motion will be found in 157 Pac. 1107. After a review we see no reason for changing the expression therein recorded as to that part thereof relating to judgment being rendered by consent. Further consideration of the motion was permitted by the former opinion.
Denied May 28, 1918.
Motion to Retax Costs,
(173 Pac. 258.)
Mr. Thomas Mannioo, for tbe motion.
Messrs. Senn, Ekwall & Becken, contra.
Counsel for defendant, Illinois Surety Company, submits that as tbe case was dismissed sua sponte tbe rule announced in Portland & O. C. R. Co. v. Doyle, 86 Or. 206 (167 Pac. 270, 168 Pac. 291), does not apply.
There is no question raised as to the amount of the costs taxed. The decision of the clerk taxing the costs herein is sustained.
Motion to Retax Costs Denied.