159 P. 1091 | Or. | 1916
Rehearing
On Rehearing.
(166 Pae. 536.)
Appeal dismissed October 27, 1916. Rehearing allowed on motion to dismiss appeal. Former opinion sustained on rehearing. Appeal Dismissed.
Mr. J. P. Winters and Mr. C. M. Idleman, for the motion.
Mr. Will E. Purdy, propria persona, contra,
delivered the opinion of the court.
1. After the death of H. D. Winters which occurred on June 20,1911, W. E. Purdy claimed to be the owner of certain lands owned by Winters in his lifetime. Purdy based his claim upon an instrument which he asserted was a deed that Winters had made and delivered to him on May 1, 1909. This instrument has been the subject of litigation in one suit, and it has been a theme for discussion in two actions prior to the instant proceeding. In Butts v. Purdy, 63 Or. 150 (125 Pac. 313, 127 Pac. 25), this court affirmed the Circuit Court and held that the alleged deed was fraudulent and void. In State v. Butts, 78 Or. 173 (151 Pac. 722), an escheat proceeding in which Purdy asserted ownership in reliance upon the alleged deed, a jury rendered a verdict adverse to Purdy; and it may be noted in passing that this court speaking through Mr. Justice Bean suggested that:
“The real purpose of the defendant Purdy appears to have been to obtain a new trial of the issues in the case of Butts v. Purdy, 63 Or. 150 (125 Pac. 313, 127 Pac. 25), which have been heretofore carefully and thoroughly considered and adjudicated.”
In Purdy v. Winters’ Estate, 79 Or. 614 (156 Pac. 285), we affirmed a judgment of the Circuit Court sustaining demurrers to the complaint in an action for damages brought by Purdy against the estate of H. D. Winters, deceased, and others; and Mr. Justice Benson speaking for the court declared that the proceeding was clearly an attack upon the decree rendered in Butts v. Purdy, 63 Or. 150 (125 Pac. 313, 127 Pac. 25). W. E. Purdy appeared in this suit as a litigant and for the fourth time he avers that he is the owner of the land, and again he attempts to support his claim of owner
“It appearing to the court from the complaint in this case that the charges made by Will E. Purdy against the defendants herein and others are but variations of charges which he has formerly made against others, which charges the supreme court of the state of Oregon has said was an attempt to alter the decision of the supreme court of Oregon in the case of Will E. Purdy v. Estate of H. D. Winters, Deceased, Agnes Butts (now Agnes Hecker), as administratrix of the estate of H. D. Winters, deceased, C. M. Idleman and Agnes Hecker, formerly Agnes Butts;
“It is Therefore Ordered, to the end that the record may be purged, that the case be and the same is hereby dismissed with prejudice. ’ ’
On June 1, 1916, Purdy filed a motion which reads thus:
“Comes now the plaintiff, Will E. Purdy, and makes application for an order of this court setting aside a former order of Judge Henry E. McGinn in the dismissing of the above named suit. Plaintiff further asks for an order of the court changing the place of trial of the issues between the above named plaintiff and defendants to some other county and state.”
Subsequently on June 28, 1916, the motion was denied and an order entered in the journal as follows:
“Now, at this time, this cause came on for argument upon the motion of said plaintiff to set aside a former order of the court dismissing the above action and also*192 an order for a change of venue, plaintiff appearing in his own proper person and on his own behalf, and after the court had read the said motion, and being sufficiently advised in the premises, the court denied said • motion; and the plaintiff electing to stand on his said complaint and refusing to plead further;
“It is Ordered, That this action be, and the same stands dismissed, and that defendants do have and recover of and from the plaintiff their costs and disbursements in this action allowed and taxed at $-, and that execution issue therefor.
“And the said plaintiff here and now gives notice of an appeal from the aforesaid judgment to the supreme court of the state of Oregon.”
After the plaintiff filed a transcript, abstract of record and a printed brief, we dismissed the appeal on the motion of defendants: Purdy v. Winters’ Estate, ante, p. 188 (159 Pac. 1091). Upon the petition of plaintiff, however, a rehearing was granted; and the question now presented arises on the motion of defendants to dismiss the appeal. The defendants contend that the order entered on June 28, 1916, is not an appealable order and that the only appealable order appearing in the record is the decree of dismissal which was rendered on May 17, 1916. The plaintiff argues that the order dated June 28, 1916, was an appealable order within the contemplation of the statute.
It will be observed that by the express terms of the order made on May 17, 1916, the case is “dismissed with prejudice”; and, manifestly, this is a decree of dismissal. It is a finality and is the end of the proceeding, unless it is made inoperative by a subsequent order setting it aside. A motion was made to set aside the decree of dismissal, but that motion was never allowed, and therefore the decree of dismissal was never rendered inoperative. By the act of -filing the motion the plaintiff admitted the efficacy of the
We cannot at this time consider the question as to whether the court was warranted in dismissing the suit. The only question for determination now is whether the plaintiff has appealed from an appealable order. He did not appeal from the decree of dismissal rendered on May 17th, which is the only appealable order appearing in the record; and since he did not appeal from that order, the motion to dismiss this appeal must be sustained. An unbroken line of authorities sustain this conclusion and to deny the motion to dismiss this appeal would be to ignore every precedent where the court has spoken upon the subject: Stark v. Epler, 59 Or. 262, 268 (117 Pac. 276); Macartney v. Shipherd, 60 Or. 133, 135, 140 (117 Pac. 814, Ann. Cas. 1913D, 1257); Gearin v. Portland R. L.
Former Opinion Sustained. Appeal Dismissed.
Lead Opinion
Opinion by
This is a motion to dismiss an appeal. A judgment in a former action between these parties, rendered in favor of the defendants, was affirmed on appeal: Purdy v. Wmters’ Estate, 79 Or. 614 (156 Pac. 285). When the mandate went down the plaintiff commenced another action wherein the complaint set forth substantially the charges made in the former action. A demurrer to the complaint herein was sustained and the action dismissed without prejudice, from which latter judgment the plaintiff again appeals. Believing that the questions here involved have been fully litigated and finally determined by this court, the appeal should be dismissed and it is so ordered. Dismissed.
Former opinion sustained on rehearing July 17, 1917.