State v. Butts

151 P. 722 | Or. | 1915

Mr. Justice Bean

delivered the opinion of the court.

This proceeding was commenced prior to the amend' ment of the statute relating to escheats: Gen. Laws Or. 1915, p. 248. The provisions of the statute before the amendment, so far as deemed necessary to mention, were as follows:

“When any person shall die intestate without heirs, leaving any real, personal, or mixed property, interest, or estate, in this state, the same shall escheat to and become the property of this state”: Section 7363, L. O. L.

The state may maintain any action, suit or proceeding necessary to recover the possession of any such property or for the enforcement or protection of its rights on account thereof in like manner and with like effect as any natural person. The proceedings shall be prosecuted by the district attorney under the direction of the Governor: Section 7364, L. O. L. The statute directs that such es-cheated property shall be subject to the lawful claims of creditors, and provides for the foreclosure of any lien thereon: Section 7365, L. O. L. It enacts that at any time after the death of such person, and whenever the Governor believes that any such property has escheated to the state, he shall direct the proper district attorney to file information in behalf of the State of Oregon in the Circuit Court of the county in which the estate or any part thereof is situated, setting forth the description of the same, the name of the person last seised, the name of the occupant or the person in possession and claiming the same, if known, and the fact that such person last seised has died without heirs, leaving the property so described in the information escheated and vested in. the state. It directs that the court upon application make an order setting forth briefly the contents of the information and requiring all persons interested in the estate to appear and show cause, if any they have, why the title should not vest in the state, which order must be published for at least six successive weeks. Exclusive jurisdiction for the purpose of declaring an escheat is vested in the Circuit Courts of the state subject to appeal to the Supreme Court: Section 7366, L. O. L.

“All persons named in the information may appear and answer, and may traverse or deny the facts stated in the information, the title of the state to lands, tenements, and other property therein mentioned, at any time before the time for answering expires; and any person claiming an interest in such estate may appear and be made a defendant by motion for that purpose in open court, within the time allowed for answering as fixed in the said published order; and if no person appears and answers within the time, then judgment must be rendered that the state be seised of the lands and tenements or property in such information claimed; but if any person appears and denies the title set up by the state, or traverses any material facts set forth in the information, the issue of the fact must be tried, as issues of facts are tried in civil actions, with the aid of a jury, if requested by either party. If, upon such trial, the verdict of the jury, if there is a jury, or the judgment of the court, if the case is tried by the court without a jury, be in favor of the state, judgment must be rendered that the state be seised thereof and recover costs of suit against the defendant”: Section 7369, L. O. L.

When real property is adjudged escheated to the state, a sale as upon execution is ordered, and, if confirmed, the net proceeds are directed to be paid to the state treasurer: Section 7370, L. O. L. Within ten years after judgment in any such proceeding had under the statute, a person not a party or privy to such proceeding may file a petition in the Circuit Court showing his claim or right to the property escheated or the proceeds thereof. Service is required to be made upon the district attorney, who must answer. If upoq a trial it is determined that such person is entitled to the proceeds thereof, the court must order the same delivered to him subject to the costs and expenses of the state and the expenses of administration, and all claims of creditors of deceased: Section 7374, L. O. L,

The statutes of the various states differ somewhat in regard to escheat proceedings. They are, in effect, the same as what was known at common law as an inquest of office, or inquisition, to determine whether decedent left any heirs: Hamilton v. Brown, 161 U. S. 256 (40 L. Ed. 691, 16 Sup. Ct. Rep. 585); 2 Cooley’s Blackstone (3 ed.), p. 258.

At the threshold of this case the important question arises as to the effect of a review of the proceedings upon the trial in the court below. The efficacy of the adjudication of the claim made by the defendant Will E. Purdy as against the plaintiff, State of Oregon, at the time Purdy was made a party defendant depended solely upon the condition that it should be found that the property of Henry D. Winters had escheated to the state; that is, that the decedent had died intestate, without leaving any heirs. When it was determined that certain named persons were the legal heirs of the decedent, the state had no further interest in the controversy. The continuation of proceedings in the name of the state in order to settle any questions of title between other claimants would be improper. In State v. Engle, 21 N. J. Law, 347, it was held that after the state in escheat proceedings had acknowledged a certain person as heir at law and released its right to such heir, the court would not permit such heir to proceed with the escheat proceedings in the name of the state for his own benefit to litigate a question between him and a third person claiming independently of the state.

In the case at bar the State of Oregon is making no further claim to the property of Henry D. Winters, deceased. An examination of the cage with a view of remanding the cause for a new trial as against the state would be ineffective. As to the other defendants who were declared to be heirs of Henry D. Winters, deceased, there are no issues of fact between them and Purdy to be tried. There was no attempt to try any such issue in the Circuit Court. As to such defendants, therefore, there is no case to be remanded in any event. The defendant Purdy was not named in the information filed. He appeared voluntarily, and at his own request had a separate trial as between himself and the state. He is responsible for being a party to the cause, and as to the force or effect of such a judgment he has no reason to complain.

' In order to authorize the Supreme Court to consider an appeal, there must be real present questions involving actual interests and rights of the parties. When an appeal involves only a moot question of law or fact, the appeal should be dismissed: State v. Brown, 5 Or. 119; Chicago, R. I. & P. Ry. Co. v. Dey, 76 Iowa, 278 (41 N. W. 17); Moller v. Gottsch, 107 Iowa, 238 (77 N. W. 859); Doidge v. Bruce (Iowa), 116 N. W. 726.

In the proceedings in the Circuit Court 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.

It follows that this appeal should be dismissed, and it is so ordered.

Dismissed.

Rehearing Denied.

Mr. Justice McBride did not sit. Mr. Justice Burnett concurs in the result.