16 Or. 43 | Or. | 1888
Lead Opinion
This appeal comes here from a judgment of the Circuit Court for the county of Union. The appellant commenced an action against the respondents in said Circuit Court, and alleged in his complaint therein that in a former action in said court, wherein one W. S. Clink was plaintiff and appellant was defendant, to recover the possession of certain personal property, consisting of one hundred and thirty head of cattle and their increase for the years 1881 and 1882 and other property. The plaintiff therein claimed the immediate delivery thereof, and thereupon the respondents executed an undertaking, which recited in effect that the plaintiff had applied for the provisional delivery to him of the personal property sought to be recovered in the action from the possession of the defendant therein; and in which the said respondents as sureties acknowledged themselves bound unto said defendant in the sum of $4,000 for the prosecution of the action for the return of the property to defendant, if return thereof was adjudged, and'for the payment of any sum which the defendant might recover in the action against the plaintiff. That by means of the said undertaking, and an affidavit made by the plaintiff, and a notice to the sheriff of said county of Union as required in such cases, the said personal property was taken from the defendant in the action, this appellant, and 'delivered to the plaintiff therein, the said Clink. That said action was tried by the court, and that this appellant recovered judgment against the said plaintiff for the return to appellant of the said personal property, the value of which was assessed at $2,142, and for the sum of $318.50 damages for the wrongful detention of the property, and $450.33 costs and disbursements in the action.
Said appellant further alleged in his complaint that said property, nor any part thereof, had been returned to him; nor had any part of the value of the property, or of the damages or costs or disbursements been paid. That by reason of the premises the respondents were jointly and severally indebted to him in the
The counsel for respondent resisted the motion, claiming that the answer was on behalf of all the defendants in the action. Thereupon said Coffin and Bobbins filed the following papers:—
[Title of the cause.]
“Now comes P. M. Coffin and C. E. Bobbins in personam, and hereby disclaim any part in the answer filed in the above-entitled action, and ask the court to take their names therefrom, and hereby withdraw from further appearance in said action.
(Signed,) “ P. M. Coffin. .
“C. E. Bobbins.”
Thereupon the court granted the motion of the respondent for default and judgment against said defendants. The judgment recites in effect that the cause coming on to be heard upon the disclaimer filed therein by defendants Coffin and Bobbins, and the motion of appellant filed therein for judgment against them upon the complaint, and it appearing to the court that said defendants had, by special personal appearance, filed in writing therein, expressly disclaimed any part in the answer theretofore filed, and withdrawn from further appearance in the cause, and having failed to answer or further plead in the action, and it appearing that they were jointly and severally indebted in the sum of $3,307.02, and thereupon said court ordered and adjudged that the appellant have and recover, etc., the usual form of judgment. The judgment also contains the further order, that the said answer be amended so as to disclose it to be the separate answer of C. L. Blakeslee and G. W. Biggers, two of the defendants in the action.
The defendants in the action, said Blakeslee and Biggers, at a
The court denied the appellant’s motion to vacate the judgment, and granted the motion of the respondents’ counsel to dismiss the case as to Blakeslee and Biggers, which terminated the agony attendant on the affair in the Circuit Court. The appellant brings this appeal from the judgment of dismissal, and seeks to review the orders refusing to grant the motion to vacate the judgment, and the order dismissing the action as to the said defendants Blakeslee and Biggers. The question in the outset
Our system of jurisprudence will not be respected or upheld unless conducted for the object and purpose of settling the disagreements between parties, honestly, promptly, and economically. This is the second time this case has been here, and it presents now only a “jangle.” No question arising out of a disagreement between the parties affecting the merits of their controversy is brought here for our consideration. The appellant’s counsel evidently mistook the undertaking as a joint and several obligation, and took judgment against the defaulting defendants accordingly, when it is a mere joint obligation, and he had no right to have any such judgment entered. The rule upon that subject was referred to in Fisk v. Henarie, 14 Or. 29, which is as follows: “In an action against several upon a joint obligation where all the defendants have been served, judgment may be had against any or either of them severally where the plaintiff would be entitled to such judgment if such defendant or defendants had been sued alone. But the rule does not authorize a recovery against a part of the defendants in such case where the others are also liable.”
The judgment therefore which was entered against Blakeslee
The Code provides that when the defendant has not appeared, notice of motion or other proceedings need not be served upon him, unless he be imprisoned for want of bail, or unless directed by the court, or judge thereof, in pursuance of this Code. (Civ.
The judgment appealed from should be reversed, the orders denying the motions to vacate the judgment be' set aside, and the case remanded to the Circuit Court for further proceedings, in accordance with the principles of this opinion..
Dissenting Opinion
dissenting.^—I am unable to concur in the views of my associates in this case, and will therefore indicate briefly the grounds of my dissent. In doing so l do not propose to discuss the power which courts of general jurisdiction have over their records after the adjournment of the term. Such power, whatever may be its extent, must be derived from some statute, or else it is a common-law power which such courts have been accustomed to exercise. The power involved here is not statutory. Section 102 of Hill’s Code vests in courts of record in this State power in their discretion, and upon such terms as may be just, at any time within one year after notice thereof, to relieve a party from a judgment, order, or other proceeding taken against him through his mistake and advertence or excusable neglect. While I concede that in view of the objects designed to be accomplished by this statute, a party in whose favor a judgment is rendered, but who is in fact prejudiced by it, might be entitled to have relief under its provisions, there is no showing of any kind to bring the appellant’s case within any of its provisions. I think it manifest, therefore, that he can claim nothing by virtue of this section of the Code, and that whatever power the court may rightfully exercise in this case is derived wholly
Conceding that under proper circumstances the power sought to j>e invoked exists, which may be seriously questioned, two insuperable objections present themselves to my mind: (1) No .notice was given to any of the parties to the action of the making of the motion; it was wholly ex parte; and (2) the ruling ■of the court thereon is sought to be questioned and reversed as against the original defendants Coffin and Bobbins, neither of whom was served with the notice of appeal.
1. When the term of court ended at which the judgment against Coffin and Bobbins was rendered, said court ceased to have any further jurisdiction over them. It could take no step in the action in any way affecting them without notice, or in some manner acquiring jurisdiction over them personally. Such notice is of the very essence of jurisdiction. As was said in Littleton v. Richardson, 34 N. H. 179: “Notice of some kind is the-vital breath that animates judicial jurisdiction over the person. It is the primary element of the application of the judicatory power. It is of the essence of a cause. Without it there cannot be parties, and without parties there may be the form of .a sentence but no judgment obligating the person.” The following authorities show the necessity of notice in such cases: Cook v. Wood, 24 Ill. 295; O’Conner v. Mullen, 11 Ill. 57; Smith v. Wilson, 26 Ill. 186; Swift v. Allen, 55 Ill. 303; Morris v. Bienvenu, 30 La. An. 878; Dunham v. South P. Commrs. 87 Ill. 185; Green v. Probate Judge, 40 Mich. 244; Baragwanath v. Wilson, 4 Ill. App. 80; Gray v. Robinson, 90 Ind. 527; Reynolds v. Anspach, 14 Ill. App. 38; Mitchell v. Lincoln, 78 Ind. 531; Hall v. O’Brien, 4 Scam. 405; Thompson v. Bishop, 24 Tex. 302; McKindley v. Buck, 43 Ill. 488; Hettrick v. Wilson, 12 Ohio St. 136; Ingram v. Belk, 2 Rich. Ill; Ragh v. Ritchie, 1 Bradw. 188; Lill v. Stookey, 72 Ill. 495; McKee v. Ludwig, 30 Ill. 28; Lane v. Wheless, 46 Miss. 666; Coleman v. McAnulty, 16 Mo. 173; 57 Am. Dec. 229; Nuckolls v. Irwin,
2. Equally plain to my mind is the other question. If Coffin and Bobbins had appeared in the court below upon the hearing of the plaintiff’s motion to set aside and vacate the judgment taken against them, the action of the court in refusing to allow the motion could not be reviewed here, it seems to me, without making them parties to this appeal by the service of the notice of appeal upon them. This was not done, and I think for that reason that no part of the case relating to or affecting them in any way is before this court on this appeal. They are as complete strangers to this record before us as though they had never been parties to it.
I have no doubt that the judgment of the court below ought to be affirmed.