295 P. 474 | Or. | 1931
Lead Opinion
In Banc. The respondent moves to dismiss this appeal upon the ground that the appeal has been abandoned by the appellant. The record,inter alia, discloses the following facts: The judgment appealed from was rendered June 30, 1930. At that time appellant gave notice in open court of an appeal to this court, which was afterwards, on September 3, 1930, entered nunc pro tunc as of June 30, 1930. On July 8, *205 1930, appellant filed an undertaking on appeal. No objections to the undertaking were filed. The appeal therefore became perfected July 14. Plaintiff had thirty days from that date within which to file the transcript in this court: Oregon Code 1930, § 7-507. Within that time and on August 1, an order was entered in the circuit court extending the time within which the appellant could file his transcript on appeal to and including the 15th of September, 1930. On September 12, 1930, appellant filed his transcript of record in this court.
Taking these facts by themselves there can be no question that the transcript was filed in time and the proceedings thus far were regular.
We now come to the controversial matters. By reason of the notice of appeal given on June 30, 1930, not having been entered at that time, appellant thereafter, on August 26, 1930, served and filed a new written notice of appeal, and on August 30, 1930, plaintiff served and filed another undertaking on appeal.
It is well settled that when a party abandons an appeal by allowing the time in which the transcript may be filed to expire without having filed such transcript, the appeal will be dismissed as abandoned: Ogden v. Hoffman,
Here, however, it is seen that the transcript on appeal was filed within the time allowed by law, computing such time from the time of the giving of the notice of appeal in open court.
We think the fact that the appellant filed the second notice of appeal, which could not avail him, did not vitiate the first notice of appeal or render the proceedings ineffective. No case comes to our attention where, by reason of two notices of appeal and the filing of a transcript within the proper time under the first notice of appeal, the appeal has been considered as abandoned. In short, the appellant was attempting to perfect his appeal instead of abandoning it when he filed the second superfluous notice of appeal. The trial judge, as we understand, was away on a vacation at the time the second notice of appeal was filed as an attempted precaution.
The motion to dismiss the appeal is therefore denied.
Addendum
The complaint in the present action alleged that the order appointing Guild receiver "was wholly void in that said circuit court was without jurisdiction," but contained no allegations of malice and the absence of probable cause. The answer avers that before Nayberger applied to the court he had stated fully all of the facts to his attorney, obtained his advice, and acted throughout in good faith. The plaintiff does not contend that the proof disclosed malice or bad faith.
The defendant contends that, since the aforementioned allegations are absent from the complaint and since the proof fails to disclose malice, the judgment of the circuit court must be affirmed. He calls to our *209
attention Mitchell v. Silver Lake Lodge,
The defendants contend that the reasoning employed by the two above cases is equally applicable to our present problem, whereas the plaintiff insists that where the writ which appointed the receiver is subsequently declared void the receiver and the party who petitioned for the appointment are both liable to the injured individual as trespassers ab initio.
In further support of their position, the defendants have called to our attention Riner v. Ramey-Milburn Co.,
"To be sure, in those jurisdictions where the statute requires the execution of a bond, by the party applying for a receiver, to pay all damages growing out of the wrongful appointment of such receiver, such damages are recoverable in an action on the bond, and it is not necessary in such cases to prove that the action in which the receiver was appointed, and the appointment of the receiver, was malicious, and without probable cause. [Cites cases.] *211
"But in jurisdictions like ours, where there is no such statute, and where there is no law forbidding the appointment of a receiver without bond, and where the matter of the appointment of such a receiver depends entirely upon the discretion of the court, judge, or chancellor, there can be no liability for damages growing out of the appointment of a receiver, in the absence of allegations and proof to the effect that the appointment was sought and obtained maliciously, or without probable cause. In the absence of a statute requiring the party applying for a receiver to pay damages growing out of a wrongful appointment, the action against a party wrongfully procuring the appointment of a receiver is likened to that accruing on the dissolution of an improperly procured injunction."
But see K.C. Oil Co. v. Harvest Oil Gas Co.,
The plaintiff calls to our attention Thornton-Thomas Co. v.Bretherton,
"Under the authorities, John D. Thomas, Bretherton, and the receiver were trespassers ab initio, and their acts particularly described in the complaint cannot be justified. The plaintiff does not demand as damages interest, prospective profits, or exemplary damages, and the allegations of the complaint concerning the extent of the business of the company, or the conduct of said trespassers tending to show fraud, oppression, or malice, must be treated as surplusage."
Plaintiff also cites K.C. Oil Co. v. Harvest Oil Gas Co., supra, wherein the trial court granted the plaintiff a judgment for $2,000 damages against a defendant who, as plaintiff, had wrongfully secured the appointment of a receiver. Although the evidence possibly was capable of supporting a finding that the application for the receivership was the result of a desire to improperly secure possession of the involved property, the court clearly stated that it was unnecessary to allege malice and the absence of probable cause, thus:
"Persons who wrongfully procure the appointment of a receiver, become, after the appointment is judicially declared void, trespassers ab initio, and liable *213 for the damages caused by their wrongful acts. It is not necessary, in order to recover damages for wrongfully procuring the appointment of a receiver, to show that the appointment was procured maliciously, and without probable cause. In an action for damages for wrongfully securing the appointment of a receiver, the general rules as to burden of proof and admissibility of evidence in civil actions apply. Plaintiff is entitled to all damages which he may sustain by reason of such appointment, and in determining the measure of damages it is proper to consider the injury to plaintiff's possession during the period of the receivership, the amount of good and collectable accounts lost by reason of the receivership, and the value of the services of counsel employed to procure the vacation of the order appointing the receiver."
The above language is quoted with approval in Wagoner Oil Gas Co. v. Marlow, supra.
The plaintiff also calls to our attention Bowman v. Hazen,
"Counsel for plaintiff in error insists that the section quoted only applies in cases where bond is given, as required by that section. That is a mistake. The giving of the bond does not create the liability as to the principal. It merely secures the payment of the damages. It is the wrongful procurement of the appointment of the receiver that creates the liability. High on Receivers (4th Ed.) sec. 10, likens the appointment of receivers to injunction proceedings, and our Supreme Court, in Kohlsaat v.Crate,
The above seem to be the only cases which are capable of assisting directly in the solution of the problem before us. We believe that a distinction of consequence exists between the situation developed by a wrongful attachment or injunction and that brought about by a wrongful receivership. When it develops that the writ under which the receiver has taken possession is void, he is left without warrant for the acts *215 which now appear as trespasses. It is our conclusion that an action of this character may be maintained even though the plaintiff is unable to submit proof of malice. When it develops that the appointment is void and inflicted injury upon the individual who was deprived of his property, the action is maintainable. As previously indicated, this court in Naybergerv. McDonald et al., supra, held the receivership void.
It is next contended that since the circuit court did not vacate the order which appointed Guild as receiver, and since McKinney never appealed from that order, the present action could not be maintained. Defendant maintains that this constitutes an unwarranted collateral attack upon the order which appointed Guild. However, in Nayberger v. McDonald, as we have already pointed out, our decision held that the order for the receivership was "absolutely void * * * a mere nullity." Our decision pointed out that the order for the receivership disregarded the statutory limitations upon the court's authority to appoint a receiver. In fact, Mrs. Nichols' attack upon the order was a collateral one itself. We have, however, again examined the issue and remain satisfied with the conclusion expressed in our above decision.
It is evident from the authorities above cited that the conduct of these defendants was that of trespassers and that they are liable accordingly. It likewise follows from the foregoing that the judgment of the circuit court was in error. We deem it unnecessary to express an opinion concerning the other matters argued in the briefs. The judgment of the circuit court will be reversed.
BEAN, C.J., RAND and KELLY, JJ., concur. *216
Addendum
Although we have again considered every phase of the above contentions, we shall not again express our views upon any part of the first proposition except upon the argument which insists that no distinction in principle exists between the effect created by an order of court taking possession of a litigant's property by a receivership and the situations created by the levy of an attachment or the service of a writ of injunction. Based upon the contention that all three of these ancillary orders are in effect the same, the respondents argue that our holdings inMitchell v. Silver Lake Lodge,
A receivership is unavailable where the party is entitled to a writ of attachment: American Freehold Land Mortgage Co. v.Turner,
The foregoing will have to suffice as a statement of the distinction which we believe exists between the character and effect of a writ appointing a receiver and the writs of attachment and of injunction.
As stated in our previous decision, the individual appointed receiver is no more than a trespasser when it develops that the writ which created his office and appointed him as the incumbent was a nullity. In fact, in our belief the present action is one of trespass rather than an action of malicious prosecution.
The second contention again argued by the respondents submits that, since the order appointing Guild receiver has never been set aside by the circuit court nor reversed upon appeal, it is immune from this collateral attack. In State ex rel.Nayberger v. McDonald, *219
It follows from the above that the petition for rehearing will be denied.
BEAN, C.J., RAND and KELLY, JJ., concur. *220
Addendum
Costs are purely statutory. At common law they were unknown, were not recoverable, and were not adjudged in the judgment of a case: Garrett v. Hunt,
Respondents argue that these sections of our laws do not direct the allowance of costs, but merely control their amount when they are recoverable by virtue *221
of some other section of our statutes. We have found no other section of our laws which is applicable. In actual practice, as is evidenced by the following citations, costs covering the expenses incurred upon the appeal are generally allowed to the prevailing party upon a reversal in this court unaccompanied with a final judgment: State v. Edmunson,
Believing as we do that the above cited sections of our laws warrant the allowance to the appellant of the costs and disbursements incurred since the entry of judgment in the circuit court, and rendered necessary by the appeal, we conclude that the motion to strike should be overruled.
BEAN, C.J., RAND and KELLY, JJ., concur. *222