145 P. 1056 | Or. | 1915
Lead Opinion
delivered the opinion of the court.
The objection that the district attorney was not served with the notice of appeal is answered by the fact that the record shows that he admitted service.
“While vexatious appeals should be discouraged, yet' the opportunity for litigants to have their issues tried in the higher courts should not be hindered by technical constructions, which too frequently lead to the subversion of justice: Smith v. Algona Lumber Co., 73 Or. 1 (136 Pac. 7).
The motion to dismiss the appeal is denied.
Motion Denied.
Opinion on the Merits
Reversed November 9, rebearing denied December 7, 1915.
On the Merits.
(152 Pac. 497.)
Department 1. Statement by Mr. Chief Justice Moore.
This proceeding was commenced in the Justice’s Court of Salem district by the State of Oregon, on the relation of T. E. Mitchell, against U. S. Rider, to
‘ ‘ That no evidence has been offered nor any reason shown by the defendant tending to excuse him for failure to comply with the last-mentioned order.”
Predicated on such findings, it was determined that the defendant was guilty of contempt and should be imprisoned in the jail of that county until he complied with the order of the Justice’s Court by paying the
Reversed.
Rehearing Denied.
For appellant there was a brief over the names of Mr. Carey F. Martin and Mr. Ivan G. Martin, with an oral argument by Mr. Carey F. Martin.
For the State there was a brief over the names of Mr. Ernest B. Bingo and Messrs. McNary, Smith <& Shields, with an oral argument by Mr. Boy F. Shields.
Opinion by
In the absence of a bill of exceptions in an action at law, the only question to be considered is whether or not the findings of fact support the judgment: Noland v. Bull, 24 Or. 479 (33 Pac. 983); Allen v. Leavens, 26 Or. 164 (37 Pac. 488, 46 Am. St. Rep. 613, 26 L. R. A. 620); Richardson v. Dunlap, 26 Or. 270 (38 Pac. 1);
In Hammer v. Downing, 41 Or. 234 (66 Pac. 916), an order issued in supplementary proceedings required defendant to apply a sum of money to the satisfaction of a judgment. The referee in such proceedings found that on a date more than three months prior thereto the defendant had in his possession the necessary money, and that, no evidence having been offered tending to prove that he had paid out any of the money, he was therefore still the owner and in possession thereof. The court in that case held that the presumption relied upon to sustain the final order was insufficient saying:
“As the judgment debtor’s failure to apply property found in his possession or under his control to the satisfaction of a judgment in proceedings supplemental to execution renders him liable to be punished as for a contempt of court (Hill’s Ann. Laws 1887, § 310), the proof of such possession ought to be con*325 clusively established by the weight of the testimony given at snch examination, and not deduced from disputable presumptions.”
If the $50 in question had been received by the defendant for the relator, as if it had been collected by an officer of the court, so that an obligation to pay it over to the party entitled thereto resulted from the mere possession, the presumption referred to might properly be indulged; for any other deduction would necessarily make a sequestration of the money a violation of the trust. What time elapsed after January 10, 1914, when the defendant was found not guilty of contempt and discharged by the Justice’s Court, before an appeal from that judgment was taken to the Circuit Court, is not disclosed by the transcript properly before us. An appeal from a justice’s decision may be taken by giving oral notice in open court at the time the judgment is rendered or within 30 days thereafter by serving on the adverse party a written notice and filing the original with proof of service indorsed thereon: Section 2457, L. O. L. It is possible the defendant, relying upon the order of the Justice’s Court finding him not guilty and dismissing the proceedings, may have paid out the money before the appeal was taken. In view of that possibility, and as the ease was tried anew in the Circuit Court, it was incumbent upon the relator to offer testimony affirmatively tending to prove that the defendant, on October 2, 1914, was then possessed of the $50, and could have complied with the order to pay that sum on account of the judgment and to have secured a finding of fact to that effect before the defendant could have been incarcerated in jail for a failure to comply with the command to make the payment: Ex parte Joutsen, 154 Cal. 540 (98 Pac. 391).
Reversed.
Rehearing Denied.