120 P. 393 | Or. | 1912
Lead Opinion
delivered the opinion of the court.
“The reversal of a judgment by any competent authority restores the parties litigant to the same condition in which they were prior to its rendition. The judgment reversed becomes mere waste paper; and the parties to it are allowed to proceed in the court below to obtain a ‘final determination of their rights’ in the same manner, and to the same extent as if their cause had never been heard or decided by any court.”
Taken by itself, this would seem to settle the whole matter in favor of plaintiffs’ contention, but in the succeeding section the following language is used:
“Upon the reversal of the judgment against him, the appellant is entitled to the restitution, from the respondent, of all the advantages acquired by the latter by virtue of the erroneous judgment. The successful appellant is entitled to a restitution of everything still in possession of his adversary, in specie; not the value, but the thing. If money has been collected by the plaintiff in the judgment, under execuf.cn, an action lies against him to*579 recover it back. * * But a subsisting judgment, though afterwards reversed, is a sufficient justification for all acts done by plaintiff in enforcing it, prior to the reversal. Thus, if the defendant be taken in execution, the subsequent reversal of the judgment will not render the plaintiff liable to an action for false imprisonment. For the act of imprisonment, where directed by the plaintiff, was sanctioned by a then valid judgment. But the plaintiff on the reversal is liable to an action to recover the damages occasioned by a sale of the defendant’s property made under the judgment prior to its reversal. Where the plaintiff has purchased the property, and still has it in his possession, the defendant may, at his election, affirm the sale and have his action for damages.”
In Williams v. Simmons, 22 Ala. 425, which was an action in assumpsit to recover money collected from an administrator’s surety, by execution upon a decree which was afterwards reversed, the court say: “A judgment reversed is regarded as if it had never existed, and the parties are restored to their rights as they were before it was rendered. * * After the reversal of the first decree, then, the defendant in error held the position of a party who had possessed himself of the property of another, without even the color of right to retain it. True he had the right when he acquired the possession but he has since lost it, and his possession has become tortious. * * He was bound to see, and doubtless, as he supposed, did see, that his proceedings were legal. In the collection of the money, he stood strictly upon his legal rights, and he cannot complain that the plaintiff in error, after the judgment is reversed, stands' upon his; nor can he be said to hold the position of one paying out money without notice that there was an adverse claim to it in his Hands. The fact that he collected the money forcibly by law, and alone upon the ground of legal right in himself, must always affect him with notice, so far as respects the rights of the plaintiff in error.”
In Stanbrough v. Cook, 86 Iowa, 740 (53 N. W. 131), which was an action for crops taken by defendant under a judgment which was afterwards reversed, the court say: “To our minds, the appellant discovers and solves the problem thus presented for us when he says in argument: ‘There is now, however, a practical difficulty in the way of our relying on the former judgment, namely, that it has been reversed.’ That is the true solution, and renders further comment’ unnecessary. An erroneous judgment, not final, would not protect the defendant in taking the property of the plaintiff. But it’is said the former judgment for the defendant ‘takes him our of the category of tresspassers, and puts him in as good a position as a defendant in an ordinary action for the recovery of real property.’ This is urged on the theory of his good faith. But the wrong done in good faith does not make it, in a legal sense, right. * * While good faith may sometimes affect the extent of liability for trespass, it does not excuse it. We are led intuitively to the thought suggested by the appellant that the judgment was reversed. It was not final, but erroneous, and gave no rights.” To like effect is the decision in Reynolds v. Hosmer, 45 Cal. 616.
The case of McCallister v. Bridges, 40 S. W. 70 (19 Ky. Law Rep. 107), is a case apparently in point for the contention of plaintiff in the case at bar, but in a subsequent hearing of the same case Bridges v. McAllister, 106 Ky. 791 (51 S. W. 603: 21 Ky. Law Rep. 428: 45 L. R. A. 800: 90 Am. St; Rep. 267), the opposite view is taken by the court in a strong and convincing opinion. The expressions in the original case seem to be to a great extent dictum, and are ignored by the court in its final opinion. In fact, the official reports of the state do not contain the original opinion, which is indorsed “not to be reported,” and is printed only in an unofficial publication.
We have thus given the principal dicisions tending to support the contention of plaintiffs, preferring, in most instances, to give the language of the courts, rather than our construction of it.
We will now advert to some of the principal decisions tending to support defendant’s contention, which, briefly stated is: That being brought involuntarily into court,
The principal case relied upon by defendant, and one in many respects similar to the case at bar, is Bridges v. McAllister, 106 Ky. 791 (51 S. W. 603: 21 Ky. Law Rep. 428: 45 L. R. A. 800: 90 Am. St. Rep. 267). Bridges and McAllister owned adjoining lands. A ditch had been dug from the land of McAllister, in order to drain certain swamp ground thereon, down to and upon the land of Bridges. In the course of years, it had become partially filled up, and McAllister and others reopened it, so as to more completely effectuate its original purpose of draining their lands. Bridges brought a suit, and obtained a decree prohibiting McAllister from using the ditch for the purpose of drainage, and directing that it should be filled up entirely. Pursuant to this agreement, the ditch was filled entirely, so that the water, which had been accustomed to flow through it in its partially obstructed condition, was thrown back upon the lands of McAllister, to the serious injury of his crops. Upon appeal, the decree was so modified that the ditch was permitted to be maintained in its partially obstructed condition; but that part of the decree which required it to be filled entirely was reversed. Thereupon McAllister brought an action in tort against Bridges for damages oecassioned by the complete filling up of the ditch. Bridges answered, setting up the decree under which he acted as justification. The court struck out this portion of his
“The main question arising on this appeal is as to the effect of the reversed judgment on acts done under it and in obedience to it before its reversal, when it was not superseded. In Freeman on Judgments (section 482) it is said: ‘But a subsisting judgment, though after-wards reversed, is a sufficient justification for all acts done by plaintiff in enforcing it prior to the reversal. Thus, if the defendant be taken in execution, the subsequent reversal of the judgment will not render the plaintiff liable to an action for false imprisonment; for the act of imprisonment, when directed by the plaintiff, was sactioned by a then valid judgment.’ And in section 104b the same author says: ‘The case of a judgment set aside for irregularity differs materially from that of one reversed upon appeal. In the latter case, the error for which the judgment is ultimately avoided is imputed, to the court, and the parties are not left without protection for the acts which they have done, based upon the judgment, and upon their confidence in the correctness of the decisions of the court.’ The same principles are laid down in Black, Judgments, §§ 170, 355. In Kaye v. Kean, 18 B. Mon. (Ky.) 847, Kean obtained a mandamus against Kaye, which he refused to obey, and, being imprisoned for disobedience, brought suit against Kean, upon a reversal of the judgment awarding the mandamus, for damages for his imprisonment. His petition was dismissed. The court said: ‘The judgment of the circuit coui*t was not void, bue merely erroneous. * * So long, therefore, as the judgment remained in force, unsuspended and unreversed, it was the duty of the appellant to have rendered obedience to it. His contumacy subjected him to be proceeded against for a contempt, and as, therefore, there was sufficient cause for his imprisonment, he cannot maintain an action therefor against the appellee.’
*584 “In Clark v. Rodes, 12 Bush (Ky.) 16, again this court said: ‘A judgment is a final and conclusive determination of the rights of the parties to the litigation, and until it shall be reversed, vacated, or modified in some one of the modes provided by law the parties cannot refuse to obey it; nor can they, by subsequent litigation, indemnify themselves against its legal consequences.'
“In Fraser’s Ex’r v. Page, 82 Ky. 73, an executor who had paid out a fund under a judgment which was not superseded, and afterwards reversed, was held protected by it for acts done in obedience to it while in force. The same ruling- was made in McKee v. Smith’s Adm’r, 5 Ky. Law Rep. 224; Shultz v. Beatty, 6 Ky. Law Rep. 662; Showalter v. Simmons, 5 Ky. Law Rep. 423; Dudley v. Beatty, 5 Ky. Law Rep. 773.
“These cases proceed upon the principle that what was lawful when done does not become unlawful by reason of subsequent acts. The chancellor, in entering the judgment in the case referred to, did not act as the agent of either of the parties. The judgment was the act of the law. Neither party could control the court, and neither was responsible for his actions. The law constituted a tribunal to determine the rights of the parties. That determination, proceeding from a power above them, was in no sense their act. A litigant in this court does not procure the judgment entered in any such sense as to render him responsible for the consequence of the judgment or its reversal by the United States Supreme Court. We have been referred to no case, and can find none, where an action for damages has been sustained, upon the reversal of a judgment for acts done pursuant to it, as for a tort. The fact that there are no precedents for such recovery seems at this day conclusive that it has not been recognized as admissible by either the bench or bar. When a judgment is reversed, restitution must be*585 made of all that has been received under it; but no further liability should in any case be imposed. The case of Hays v. Griffith, 85 Ky. 375 (3 S. W. 431: 11 S. W. 306: 9 Ky. Law Rep. 65), is not supported by the weight of authority, and cannot, in our judgment, be maintained on principle, so far as it lays down a greater liability. The quotation made from Freeman on Judgments is from a sentence omitted altogether in the last edition. The opinion is supported only by some cases in Illinois and California, and is contrary to the rule followed by the United States Supreme Court and all the other state courts, so far as we have seen. It is also in conflict with the well-settled rule that the court, in ordering or confirming a judicial sale, and the commissioner in making it, do not act as the agent of the plaintiff. Bank of U. S. v. Bank of Washington, 6 Pet. 9 (8 L. Ed. 299) ; Rorer Judicial Sales, §§ 1-12; Forman v. Hunt, 3 Dana, 621.
“Appeals may be taken from judgments ordinarily within two years, but sometimes within five or twenty years, and it would often produce intolerable hardship to hold a litigant responsible for the consequences of an erroneous judgment under such circumstances. The object in having trust estates, including those of decedents, or those assigned for the payment of debts, settled in equity, under the direction of the chancelor, is to protect the parties in the payment of the money, as well as to secure to every one his rights. A creditor with a small claim, who moved for a distribution of the fund, would, under the rule referred to, be responsible for the entire fund upon the reversal of the judgment, although he had received only a few dollars of it. Such a rule would destroy all confidence in judgments of courts, and make them the prolific parent, in many cases, of ruinous litigation.
“Our system of courts and the principles governing them are derived from the common law. But in England*586 the tribunal was called the ‘curia’ or court, because it was held by the king himself originally. The judgments of-the court read as the judgments of the king, and when he ceased to hold the court in person, and delegated this function to one of his officers, the character of the judgment was the same. Manifestly there the subject was not responsible for damages for the act of the king. In this country the power vested in the king vests in the body of the people, and the courts sit as their representative. The law, from principle and policy, requires that full confidence should be given to their judgments while in force. It tends to prevent the troubles incident to the settlement of disputes by the act of the parties, often bringing about breaches of the peace or bloodshed. It is the duty of every good citizen to obey the mandates of the law, and no one should incur any responsibility by doing that which it was his duty to do. It is also the duty of every citizen to uphold the authority of the courts and maintain respect for their judgments; and when in doing this he obeys a judgment of the court it is a sound and safe rule that no liability for damages should arise therefrom.”
In a valuable note to this case, in 45 L. R. A. 800, the editor says:
“The pervading doctrine is that the reversal of a judgment which is merely erroneous, as distinguished from one that is irregular, void, or voidable, merely creates a right ex. aequo et bono to have restored what has been lost, and that it does not relate back, so as to render wrongful acts done under the judgment which were justified at the time.”
Mark v. Hyatt, 185 N. Y. 306 (31 N. E. 1099: 18 L. R. A. 275), was a case where the plaintiff sued to restrain infiringement upon certain patents, and after hearing obtained an injunction. Upon appeal to the general term of the Supreme Court, the case was reversed. Plaintiffs.
We have tried fairly to present the principal authorities bearing either way upon the matter in controversy in the case at bar, for the reason that the precise point involved here has not been previously decided by this court, and because the question is of such nicety and difficulty that counsel in the case and the bar generally are entitled to all the data upon which this court bases its conclusion upon a question which no candid lawyer can say is beyond controversy.
We are of the opinion that in a case like the present one, where as we shall presently show, the decree is self-executing, and no stay of proceedings is asked or taken on the appeal, that the successful party in the court below has a right to assume that the decree if the court is lawful and proper, and that he will not subject
The undertaking on appeal given in the suit of Hough v. Porter would have afforded this defendant no remedy, had he treated it as suspending his right to use the water during the pendency of the suit. It is conditional that “defendants will pay all damages, costs and disbursements which may be awarded against them or either of them on said appeal, or a dismissal thereof.” Now suppose that Small had refrained from using the water until the final disposition of that case in this court, and finally prevailed, what redress could this court have given him upon this undertaking, for being deprived of the use of the water"? Manifestly none. Its functions are purely revisory. It could only have given him costs and disbursements. Water used for the purposes of irrigation is for many purposes treated as real estate; it is appurtenant to the land. Sections 6545, 6668, L. O. L. Being so appurtenant to the land, we are of the opinion that an undertaking, to be effectual as a stay in cases of this character, should conform to the requirements of subdivision 2 of Section 551, L. O. L. Under this section, the appellant could have had the value of the use of the water fixed beforehand by the circuit judge, and the prevailing party would have had a definite right to resti
Plaintiffs did not seem to have such confidence in the merits of their appeal as to be willing to take any chance of paying damages in case it should be adjudged groundless, and they should not now be permitted to mulct Small in damages', because he was not wiser than the circuit court, and did not know the law which this court consumed 125 pages of the Oregon reports in explaining.
It is often said that there is no wrong without a remedy, and, while this is generally true, a remedy may be lost by inaction or want of diligence; and, if we concede that it was wrong for defendant to assume that the circuit court had properly adjudged the law, we have already indicated that plaintiffs had it in their power to minimize the effects of that wrong by giving a proper undertaking, or by applying to this court for an injunction. But we are not prepared to say that defendant, under the circumstances, was guilty of an actionable wrong. As was taid by the court in State v. Sma1l 49 Or. 603 (90 Pac 1110), which w7as a pru-.ee i,ng to punish this defendant for contempt for committing the very act upon which this action is predicated, “until the appeal in such suit is heard and determined in this court, and until such decision is rendered, it must be presumed that the decree of the lower court is correct in every particular.” The defendant had the right to indulge in this presumption, and if his act was not a tort when per
Judgment affirmed.
Affirmed.
Rehearing
Decided June 25, Motion to Re-Tax Costs denied August 14, 1912.
On Rehearing.
[124 Pac. 649.]
delivered the opinion of the-court.
In their able brief on petition for rehearing counsel for plaintiffs contend that the opinion of this court in State v. Small, 49 Or. 595 (90 Pac. 1110), is a conclusive determination in plaintiffs’ favor that the undertaking given by appellants in Hough v. Porter operated as a supersedeas. The language used by the court in that opinion is a follows: “Though the ownership of ditches by the relators and the legal assertion by them of the right to have the water of Silver Creek flow in such trenches to their lands for the irrigation thereof may constitute real property, * * we shall assume, without deciding,, that the decree rendered in the case of Hough v. Porter was not a suit for the recovery of the possession of land or for the partition thereof, so that an undertaking only for appeal stayed the proceedings as if the further undertaking therefor had been given.” The court then goes on to discuss the evidence, and holds that Small is not shown to have been guilty of contempt. It will be seen from the language quoted that the court expressly declined to pass upon the question as to whether
This court has never intimated that plaintiffs might not have restitution by an appropriate action probably in quasi contract for any profits, or perhaps for- rentals of water appropriated by Small during the pendency of the appeal of the case of Hough v. Porter. We only hold that in this action, which is in tort pure and simple, he cannot recover, and we adhere to that view. It is, however, called to our attention that paragraph 5 of the complaint states a cause of action arising from a wrongful diversion of water during the irrigating season of 1909, and subsequent to the rendition of the decision in Hough v. Porter. This was not called to our attention on the original argument, and we are of the opinion that as to that cause of action the demurrer was improperly sustained. Our former opinion is therefore modified to the extent that the judgment of the lower court, sustaining the demurrer to the fifth cause of action, is reversed, and the cause remanded for proceedings not inconsistent with this opinion.
Modified on Rehearing: Motion to Re-Tax Costs Denied.
