State v. McDonald

128 P. 835 | Or. | 1912

Opinion

Per Curiam.

Section 7370, L. O. L., provides:

“In any judgment rendered or that has heretofore been rendered by any court of competent jurisdiction, escheating real property to the State, on motion of the district attorney, the court shall make an order that said real property be sold by the sheriff of the proper county, where the same is situated, at public auction for cash in the same manner as real estate is sold on execution * * and the sheriff shall out of the proceeds of such sale pay the costs thereof and pay the costs of said proceeding incurred on behalf of the State in accordance with and as shown by the decree of court ordering such sale and the remainder of the proceeds of sale he shall pay to the State Treasurer.”

Section 7376 reads thus:

“The Governor is hereby authorized and empowered to employ additional counsel in all cases arising under the provisions of this act in which he deems it for the best interests of the State; and whenever it shall appear to the Governor necessary to employ additional counsel to aid the district attorney in the prosecution or defense of any action, suit or proceeding authorized by this act such counsel shall be paid such sum or sums for such services as the court before whom such action, suit or proceeding is had shall deem reasonable, which compensation shall be paid out of the proceeds arising therein as the' costs of the State in acquiring or in defense of said escheated property.”

1. The order from which the appeal was taken was made on motion of the district attorney, the law officer of the State in such cases named in Section 7370, L. O. L. This culmination of the case was resisted by many devices by the original defendants in the case as well as by their counsel who assumed the role of amicus curiae. In our judgment the proceeding is not affected by the appearance of a friend of the court; for, as said in 2 Cyc. 283:

“The office of a friend of the court is restricted to making suggestions as to questions apparent upon the record, or matters of practice presenting themselves for determination in course of proceedings in open court. An amicus curiae can neither take upon himself the management of the cause as counsel; nor file a demurrer; nor take exceptions to the ruling of the court; nor bring the case from one court to another, by appeal or writ of error; nor suggest a diminution of the record; nor file a petition for a rehearing.”

2. The original defendants were either adverse parties in the proceeding terminating in the order from which the appeal has been taken or they were not. If they were adverse parties, which might be assumed from the fact that they appeared by their counsel and resisted the granting of this order, the notice should have been served upon them, because, if they were interested in opposing it in the circuit court, they are interested in defeating it on appeal to this court.

3. The notice of appeal should have been served also upon all the persons in whose favor allowances were made, for it is not consonant with justice that they should be deprived of the benefits thus adjudged to them without being afforded an opportunity to be heard. Hamilton v. Blair, 23 Or. 64 (31 Pac. 197) ; Schmidt v. Oregon Gold Mining Co., 28 Or. 9 (40 Pac. 406, 1014: 52 Am. St. Rep. 759), is also instructive in this connection.

4. If they and the original defendants were not adverse parties in the proceeding from which this appeal has been taken, the order complained of was as to them a consent order, for it was upon the motion of the State of Oregon by its District Attorney that this decision was made. The plaintiff cannot complain or appeal of an order which was entered on its own motion in the court below. The State cannot quarrel with itself.

We have here the anomalous situation of a notice of appeal on behalf of the State directed to no particular person and service thereof accepted by its own District Attorney. In other words, the State served its own notice upon itself, and in our judgment this does not present a case calling for the action of this court.

The appeal is dismissed. Dismissed.