*1 184 2, September 1960,

Motion dismiss 12, denied March submitted petition rehearing 1, affirmed November for denied November PRIESTER ux v. THRALL et ux et 2d 349 P.

365 P. 2d 1050 Martin & Portland, Robertson, Jensen, Davis, the motion. contra. Portland, &

Lenske, Spiegel Spiegel, *2 J. ROSSMAN, to the

This cause which was instituted pursuant of our laws which authorize the maintenance provisions (ORS forcible detainer actions wrongful through 105.105 is before us a motion upon 105.160) made to dismiss the defendants’ plaintiffs ap- The motion is peal. predicated the fact that defendants have not filed the which ORS undertaking in describes the following language:

“If is rendered judgment the defendant for the restitution of the real property described complaint, any part thereof, appeal shall be taken by the defendant from the judgment until he in addition to gives, now undertaking required by law upon an appeal, undertaking the adverse with two party, who shall sureties, jus- in tify like manner as bail upon arrest, payment if plaintiff judgment affirmed on twice the rental value of the real prop- erty of which restitution is adjudged from the com- mencement of the action in which the was judgment rendered until final in judgment the action.” This action begun July 3, 1959, when the plain- tiffs filed a complaint in the district court for Mult- nomah County seeking recovery of the possession of a house and lot situate in Portland. The answer made it apparent the title to the real property described in the complaint was in issue, thereupon the district court transferred the cause to the circuit court. November 5, 1959, the circuit trial court, of the issues presented by the entered a answer, decree “the defend- declared, which the

in favor of in interest the prop- or have no legal ants the circuit court entered 6, 1959, November erty.” which in favor of the of restitution judgment which found jury the verdict was based upon November writ 9, 1959, defendants guilty. and November 19, execution was issued that November 9, made his return which stated sheriff named made demand on the within defend- 1959, “he * * * for the described as follows ants premises which demand was with.” complied said have not the defendants, appealing,

Although of the kind described undertaking submitted filed the exacted nevertheless 105.160, they undertaking ORS 19.040 (1). from the the de- foregoing although We see fendants vacated the when the cir- promptly premises entered the challenged judgment, cuit court *3 insist that the defendants can not without tiffs appeal in addition to the executing, undertaking required by the 19.040, ORS additional undertaking required by * * * that one “with 105.160, is, ORS two sureties the to the if the is af- payment plaintiff judgment on of twice the rental appeal firmed value of the real property.”

This court has held that the of the under- filing described ORS 105.160 is a taking to an prerequisite the tenant. v. Zelig Blue Point appeal by Oyster Com- 104 P pany, 193; 54 Or v. 543, Heiney Heiney, 43 Or P 1038; Durkin, Danvers v. 37, Or 12 P 60. In those cases the tenant wished to remain in posses- sion the outcome of the pending The undertak- appeal. therefore, when ing, given, stayed enforcement of the challenged judgment. it has since 3,1959, begun July

This action the further than notice any ap- not yet progressed is needed to undertaking, imagination the peal the de- the defendants must meet that if make it plain submit themselves they must mands of ORS the rental unless liability major proportions to a described the complaint value of the property small. within three days mentioned the fact that

We have the defend- challenged judgment ants had we assume quit property. Accordingly, If that have possession. the plaintiffs judgment of the circuit court had been in favor of the defendants and the had the latter appealed, would have been to file no undertaking the one ex- required except acted ORS It will 19.040. be recalled that de- fendants have met the demand of that section of our but assert laws, that notwithstanding fact that the defendants have vacated the property they must comply not with ORS 19.040 but also 105.160.

If ORS 105.160 is to the applicable situation pre- sented then in case, the event the chal- lenged judgment is eventually affirmed, the defend- ants and the two sureties their undertaking, had one filed, been would be required pay the plain- tiffs “twice the rental value of the real not- property” the fact withstanding pending had possession tiffs of the property.

We if recognize that a tenant who sur- appeals renders property, these defend- *4 ants have done, the due to landlord, his inability to a term sign long may lease not be able to secure from its property full rental value, pending the appeal, upon a kind rents best if the long if the land the other hand, But, term basis. wrongfully this kind action of institutes lord manufacturing property, the of mercantile a tenant may appeal, period pending the meet tenant, costly him than those we no less to vicissitudes during concerning just the landlord, envisioned may period meet with the tenant of engendered to the uncertainties difficulties due credit by maiding adequate although appeal. The statute, during protection provision the landlord for the of appeal, none to the tenant. affords Oregon such Provisions of the Constitution prevent are intended and 20, Article sections I, 1,10 legislative judicial, in ad both discrimination, justice. People may cast into classes, be ministration upon reasonable must be based but the classifications grounds: McCourt, P2d 569. v. 185 Or Namba whereby can be of no basis a landlord We are aware given privileges superior to him OBS afforded the possession. promptly if the tenant surrenders 105.160 statutory re rule of construction A familiar quires which render stat courts to avoid constructions in their exactions or unreasonable utes unconstitutional satisfactory given provided reason can be for differ 105.160 should be con result. think ent We ORS application to situations such as this as strued its undertaking compliance stay render with it and to necessary event that the tenant remains in judgment. In other stay provides pro for the words, notwithstanding ceedings the adverse result. It can yields where the defendant therefore, no effect, have premises. promptly vacates the result the adverse *5 Ferber v. Watry, in onr Wis belief, supports this conclusion.

The motion to dismiss the is denied.

ON THE MERITS Portland, Lenske, appellants. Reuben for respondents. No appearance PER CURIAM. and de-

The commenced forcible county tainer action in the district court Multnomah property real of certain recover By possession of the defend- answer, the defendants. they alleged ants were the owners of the legal and the held naked title The case was as trustees for defendants. thereupon transferred from the court of Mult- district *6 county nomah the where court court, to circuit the equity equitable proceeded to de- first determine the interposed. plain- fense The trial court found for tiffs the defendants. The thei’e- and defendants appeal. prosecuted this assignment of The defendants’ first error is: proceed requiring to “The in defendants court erred making plaintiffs equitable defense before their except prove they for such were entitled to defense.” authority for this statement are set

No citations attempt showing to brief that counsel made out, contention is frivolous. The defendants’ matter. specifically provides: OES where defendant is at law “In action arising of facts out relief, to entitled the requiring * * equity, interposition a *. court interposed, equitable matter is such an When stayed proceedings and shall the case at law be proceed, until the determination thereafter shall equity by as a suit raised, issues thus may perpetually proceedings law be at which proceed enjoined in accordance with or allowed n equitable relief as is decree; such final may party. given de- proper termining If, to either be interposed equities, answer or as proceed at reply, law, is allowed to case matter shall be pleadings containing withdrawn from the and considered the court case, shall allow such the law action are pleadings for in actions of law.” provided The defendants’ second contention is likewise without merit. totally the court say

Defendants admitted in erroneously evidence memorandum agreement, which exe- cuted and defendants after the tiffs had served defendants with a notice vacate. The defendant Ardath Thrall is referred to as the sec- ond party which concerns itself with agreement the real involved in this matter. This agree- ment, insofar material, as is reads:

“WHEREAS, Party Second tenant in said property, does acknowledge from First receipt Parties of notice to proper vacate said property * * on or before June 1, Just this admission why in- against defendants’ terest was not admitted properly we are unable to nor are we conceive, able to ascertain from defendants’ brief.

There no merit in and the decree and judgment are affirmed.