*1 September 9, 1952 Motion for a denied argued September September affirmed

BLAIR v. BLAIR 2d

247 P.

260 P. 2d 960 *2 Bowles, of Portland, for the motion. & Weiser Dickson, & contra. Swindells, Portland, McCarty, C. J. BRAND,

On the 8th day March, 1951, the circuit court of Multnomah entered a decree County based upon an order of default after personal service, awarding to the plaintiff, Hazel Nadine Blair, divorce from her husband, Ralph Blair, Oscar to the awarding defendant, with the consent of the plaintiff, control the minor children. On March 31, 1952, filed a motion for plaintiff modification decree and for an order to her awarding the custody of the minor children, together with for their money support. July On 8 after a hearing, made an order change custody in substantial compliance with the prayer directed the defendant to deliver the minor children to the plain- tiff “forthwith.” *3 the On same the day defendant served notice of to this appeal court, and on 11th the of day July, 1952 there in was filed said under- for costs on taking wherein appeal the under- surety took and to promised all pay damages, costs and disbursements which be awarded on may The appeal. “but provided, however, this does undertaking not the stay proceedings in this cause.” theOn 18th day of July, 1952, the defendant made application this court for a writ of and supersedeas of stay pro- the ceedings concerning transfer of custody de- fendant to plaintiff. July On 1952 the plaintiff objections filed to the application. Briefs were filed and considered. The application was denied by this court on the 28th of day July 1952 and the parties were notified. Because duly of the importance of the involved it has been question thought appropriate that should be the matter covered written opinion. presented by are

Two contentions defendant the stay supersedeas application of in Ms for writ of and proceedings. that under the He contends appeal § the notice 10-805, of OCLA, 10-804 damages operates undertaking and the for costs stay further order the without to appeal of cause. the the decision of this court he that follow correct, If his contention is it would custody permitted retain of the minor would be to appeal court, in this until the decision of the cMldren notwithstanding after court, that the circuit fact hearing, defendant deliver full has ordered de The minor children to the forthwith. be if it should is, fendant’s second contention operation of not the cost bond did held that custody, modifying this court has the the decree pre supersedeas purpose issue for to a writ of custody venting transfer of children to final determination the decree mother until the court. We will first consider whether the operates the en of an and cost bond transferring custody. of an order Sak forcement P2d 217 P2d Sakraida, raida presented. A for decree a similar situation was 762, custody modified so as to award minor child was custody appellant served and filed the father. The gave pay all a notice of might damages, costs and disbursements appeal. against child was in her on the awarded custody father and mother moved actual restoring to her an order *4 stays ground appeal, appeal provisions proceedings. cited the of OCLA, This court then §§ 10-804 and 10-805 said: quoted portion ap- §of 10-805 “Whether

277 plicable any circumstances to a case of this kind question by ais in doubt left our decisions. In (2d) Bestel v. 153 Bestel, Or. 44 P. 53 P. 100, 1078, (2d) appeal 525, it was held that on from an order granting of a child the mentioned in 10-805was sufficient in and of itself separate and that no order purpose necessary. the court for this was It was appeal there assumed that an such governed by § was 10-805. The decision was authority of In re Vinton, Or. 132 P. 422, 1165. The construction announced these cases is not in harmony subject what with was said on the in the later case of Estate, Workman’s 333, Or. * * *” (2d) (2d) 65 P. 68 P. 479. unnecessary It was for the court to resolve the authority conflict of to which reference was made in Sakraida v. Sakraida, because of the fact that already acquired possession father had of the child nothing and there was stayed therefore which could be by a bond.

We now must determine whether a bond such as given operates prevent was in this case carrying awarding out of the decree of the change circuit court custody. Estate, Workman’s P2d 1395, P2d was taken from an order rejected application person appointment of one appointed as administrator and which another to that n office.The court said: part “The from the of the order which appoint appellant stayed refused nothing part because that self-executing of the order was * * *” required no affirmative action. question The next considered was whether under §§> of OCLA, 10-804 and 10-805 the *5 the administrator was stayed by order appointing bond. The court gave of the cost filing appeal of the statute full consideration to said: * * “* that the legislature We do not believe all stay proceedings this enactment intended

by in the numerous not sought cases where the relief does money, property the execution consist * * *.” conveyance; of a that and cost bond did not It held the appeal was of the order an admin- appointing operation istrator. Bestel, Bestel v.

In 153 Or 44 P2d this said: a case governed by “Assuming 7-505, Oregon final sentence of section Code OCLA, that provides § 10-805] [now “ for ‘In in such subdivisions cases not provided * * * 2,1, 3 and OCLA, § 10-804] [subdivisions an undertaking with appeal'is perfected, when stayed shall be as for the appeal only, proceedings had been given’, if further thereof undertaking undertaking appeal op- of plaintiff’s * * erated to analysis of the able statute Work- view longer “assume” that an order case, man’s we can not a ward of the is governed changing 10-805. OCLA, approve final sentence We ca,se and un- deem it Workman reasoning was said there. The what quoted necessary repeat v. Bestel Bestel overruled. statement Bestel decision was based decision P Vinton, 1165. In that case in In re imprisonment sentenced to con- defendant was executed, sentence was notwith- of court and the tempt fact he had to the appealed Supreme that standing had “conditioned given Court and all costs and damages, the defendant would pay him on in that disbursements awarded against if of contempt the judgment proceeding, or in he would affirmed, should be either in part, whole * * *” so far as affirmed. The de- satisfy the same *6 in habeas brought original proceeding fendant and was from this court corpus discharged custody by the execution of the order of ground was imprisonment the service and of stayed by the notice of the contempt It is to decide means proceeding. what unnecessary by a to commitment in a case prison contempt may insofar as stayed, but, the Vinton case deemed may be to be for authority in the Bestel it is ruling case, overruled. In case at bar hold the operation we of the order of changing the minor children was not stayed by the of the of giving notice and cost To bond. rule in some future might otherwise case have results, a child in tragic leaving the custody of an for unworthy person of the period appeal, the court leaving to helpless protect its own ward.

We turn to second defendant’s contention which is that this court has inherent to issue writ which supersedeas would the enforcement of the decree changing decision custody pending we appeal and that should exercise that in the will case. We consider first the question of power. Livesley Krebs Hop Company,

P 107 P P 1, the plaintiff suit brought the defendant enjoin corporation enforcing by execution a had judgment which been rendered The the plaintiff. and against

favor of the defendant the issues alleged defendant was insolvency eminent counsel class concerning were “of a the suit. The The trial court dismissed differ.” may and filed a to this court petition appealed the execution restraining is- The order was restraining on the merits. hearing sued. court said: The

“* *# execution by enforcement the threatened subject suit, which is the of the judgment, and thus satisfy judgment, would operate render any might relating decree this court nullify render such a decree difficult thereto, or at least * * enforcement. The added: court whether jurisdiction,

“The grant appellate statute, by necessarily made the constitution all of an incidental in such powers vests jurisdiction to make the required granted nature ** *” effective. B now C, OCLA, referred to & Section *7 issue of a circuit to the 9-404, concerning § and said: suit injunctions pending in court, in a case in the which appellate “And 420, B. is Section injunction proper, a provisional as as in cases & Comp., equally applicable C. * * *” circuit court. Silverton, v. P P In Lais 434, 147 398, 150 77 Or restrain sought injunction P plaintiff con city letting improvement the defendant ing therefor. assessing plaintiff’s property tracts thus permitting the suit trial court dismissed The The improvement. plaintiff with city proceed enjoin for an order and moved this court appealed a decision further ing appeal. It will be observed ease did not fall any § within of the five subdivisions of OCLA, 10-804 specify the various forms of bond which must given accomplish proceedings, in order to any opinion nor was there indication in the that the ordinary stay. cost bond had the effect of a This court injunction authority Livesley issued an on the v. Hop Company, supra. Krebs Leyde,

In Kollock & v.Co. 77 Or 143 P plaintiff brought 151 P 733, the suit to foreclose me chanics’ liens and on the trial had a decree of fore appealed closure and sale. The defendants and filed pursuant § to OCLA, 10-804,subdivision 4. plaintiff undertaking pursuant filed a counter of OCLA, 10-806. The defendant made application Supreme enjoin to the Court for an order ing appeal. the sale It was held that the by counter was not authorized the statute. The court said: by Livesley “It is settled the case of v. Krebs

Hop (97 Co., Or. 352 Pac. 718, Pac.460, 1), Pac. has the to issue a temporary injunction preserve quo the status property pending appeal.” enjoined pending appeal. The sale was Coopey Keady, plain 81 Or P 218, 139 108, accounting allegedly tiff sued for an of commissions earned and defendants as associates. alleged The defendants that their association with the plaintiff had ceased before commissions were testimony sharp earned. The in the circuit court was in possession conflict. The defendants had in their as a portion large capital of the commissions a block of the corporation. stock aof There was a decree for the *8 282 dispose capi-

defendants which them left free plaintiff appealed.' tal stock. The This court said: * “ # * Livesley Hop held, in v. Co., ^ was Krebs (97 1), 718, 57 Pac. 112 Pac. 460, grant Or. 352 Pac. 107 jurisdiction restrain- this court had ing appeal. do cases We not necessary ques- deem it to re-examine that therefore tion. will the decision that case.” We follow disposing The restrained from the defendants were appeal. property the decision on the The the restraining granting refusal of orders was said to sound of the court. rest in the discretion Noyes-Holland L. Co., In L. v. & L. Co. Pacific plaintiffs P filed cross bill in the 236, Or equity seeking enjoin prose the defendants from cuting ejectment action. The trial court dismissed permitted prosecution of bill and cross justice parte, court ex a tem issued, action. A injunction forbidding prosecution porary injunction recog This dissolved the but action. Livesley authority supra. Krebs, It was v. nized the injunction granting in such instances held of an appear discretionary it not that the and that did by dissolving rights party prejudiced of either would injunction. Malagamba McLean, P 302, 161 560, In v. 89 Or brought plaintiff enforce suit to P judg been issued on ment of an execution which had against and another. circuit ment himself complaint and dismissed sustained a demurrer to appealed an order and obtained suit. The judgment staying execution from this court appeal. pending the Copenhagen, & Dubber Co. Helms Groover whereby the was a contract P there

283 agreed plaintiff’s patent over and defendants to take patented manufacture and sell the machines. The de- plaintiff and fendants violated the contract sued for and a decree of rescission. The decree obtained negative was and affirmative in form. both re- It manufacturing from strained the defendants affirmatively machines and ordered them turn over plaintiff. all machines to the Thereafter the defend- appeal. day same ants filed notice of the circuit On staying part court entered a of its affirmative permitted ap- decree. It the defendants, peal, keep operate partially machines, 16 thus maintaining quo. pursuant A status to OCLA, (3) given by § 10-804 was the defendants and was approved. Supreme then, in the Court, restraining moved for an order from defendants operating restoring the 16 machines, and, effect, quality original the effective decree. This court said: “ * * * governed by statutory This now matter is general expressly pre a which, as rule, judgments, may scribe what orders or decrees be superseded, upon general what conditions. aAs any proceedings upon appealable judgment rule, or except may in a enumerated order, cases, few superseded upon of a sufficient under taking. Ordinarily perfecting of an judgment, stays only decree or order affirmative proceedings thereunder. An from a decree granting injunction, prohibitory self- which is executing requires no action, affirmative

merely maintaining quo pending ap the status peal, suspend injunction. does not other On the mandatory injunction, is, hand a one which compels action affirmative the defendant instead merely preserving quo, the status cannot be en duly perfected appeal: 2 forced R. L.,C. Cyc. Day p. § 22 1010. 122; See, also, Holland, v. (15 Or. 464 Pac. 855); Toy Gong, (170 Pac. 986); J., C. et seq.” § p. It is obvious that the above-quoted paragraph, the court was the cases which come considering within terms of the statute which for the provides proceedings giving upon appeal. statute, That for an auto- OCLA, 10-804, provides matic under affirmative decree giving form of bond in the required following cases: or decrees for the re- Judgments (1) covery or money personal the value property *10 thereof. For the of real a (2) or recovery property thereof or a foreclosure of a lien partition thereon. For the transfer or (3) delivery personal property in certain cases. For the foreclosure of a lien and (4) against for the person amount of the debt secured thereby. As we have none indicated, provisions of the of that statute cover the case of a decree for the change The court custody. the inherent recognized to issue in cases covered in supersedeas not statute by the following language:

“It rule either general is the lower or has court, to the appellate according circumstances, inherent a grant stay proceedings pend even en ing where there is no statute appeal a stay. to such "Where the to a titling party right stay entirely regulated by statute, or where conditions prescribes may statute which it upon allowed, grant be obtained or the courts cannot a in stay of a case which is not within statute, or in the absence of compliance with conditions: 3 J., 1286; C. prescribed p. § * # *” also 1289. p. § said: the court Again

“# * * yet order to the subject mat preserve ter appeal pending hearing upon merits, may restraining this court issue order * * aid protect appellate jurisdiction: Citing its *.” Livesley Hop supra. Co., Krebs Although, under amendment to OCLA, jurisdiction acquires § 10-803,this mere filing appeal, of the notice of it is still true that appeal perfected filing until is not after the service and undertaldng expiration of an and from the of the time except allowed to to the sureties thereon or from the justification excepted § thereof if to. OCLA, 10-803. "Weconstrue the Helms Groover & Dubber case to hold merely general giving “as rule” the of notice required by of a as statute “duly perfected appeal”, operates which constitutes a compelling as a of decrees affirmative action. discussing Since the court was the situation in a case by language covered employed statute, was appropriate to the facts case. Notice of given had been and a bond was furnished in strict conformity with the (3), of OCLA, 10-804 with the result by that the became effective operation of the statute. holding

We revert to the Estate, Workman’s supra. In that case an appointing affirmative order an administrator was made the trial court. The *11 specific provisions of the code for of affecting money, property bonds in cases or the exe- conveyance cution of applicable. were held not The court also considered the last sentence of OCLA, 10- 805 which reads as follows: * * provided In cases not for in such subdi- appeal perfected, visions, when is with an under- taldng appeal only, proceedings for the shall be stayed undertaldng as if the further thereof had given.”

been 286 that also did

It was held that.section was, not See The conclusion in that case apply. snpra. for a that there no therefore, statutory provision in ldnd The cases of the which was there involved. then said: court * *

“* However, this court inherent possesses courts, as do all to issue orders power, appellate subject for the preservation supersedeas the appeal, thereby avoiding imposi matter of tion damage upon parties; of irreparable it this even may though exercise self-executing from a or decree: judgment is taken * # Estate, *.” In re Workman’s 333, 65 Or P2d P2d 479. we

Again quote: “* * * to issue orders possesses power this to demand undertakings supersedeas that should develop event it appointee, en- is about to appeal, [administrator] a course of conduct which injuriously will gage upon subject matter of the appeal.” affect Claggett, P Claggett issu its inherent power by P this exercised injunction mandatory in a divorce case further ing court concerning custody. ance of the decree trial de been awarded to the The Custody plaintiff. had costs and gave covering fendant appealed and all damages might disbursements then removed the child from accrue. He the jurisdic ordered him tion. Court to return the Supreme The The case illustrates child to state. inherent power appellate jurisdiction, although exercised protect maintaining the status quo. not the purpose dis review of decided cases foregoing of inherent have ordi the questions closes were involved and rights arisen when narily property *12 power has the been exercised to maintain the quo, protect appellate jurisdiction status the Supreme of limiting no but we see reason Court, appellate power involving to cases protection party irreparable of a loss of a mone- tary nature. The enforcement of an ill-considered custody order for transfer of of a ward the court might, irreparable cases, some result in harm more any serious than the enforcement of of execution. writ granting appellate jurisdiction We hold that necessarily power stay vests in this court such appeal, an order an and that such required granted of the incidental nature to make the jurisdiction Livesley Hop Co., effective. v. Krebs supra. awarding custody An order to one who threat- jurisdiction ens to take the infant outside the appeal might insepa- court well erect an against rable barrier the effective enforcement appeal. recognizes decision on Worhnan’s Estate this principle, although that case involved an affirmative concerning order the administrator rather than a ward of the court. teach, authorities however, that such lightly should not be invoked. We have re

peatedly acknowledged weight given to be Only the trial court in child cases. decision of this the execution in an extreme case should pending appeal. interference Such of such rela of domestic decree of a court with hearing but before we there, after due entered tions, might result in merits, have heard by leaving for the dura it to the child incalculable harm improper In the case at hands. tion of the the issuance of reason for have found no we bar, stay. question, importance we have

Because *13 explored of this court to issue a finding exist, and we now cases, extreme for these to exercise it reasons. decline for execution of the order for The motion custody and denied. a transfer of has been is

On Merits In Banc Judge.

Virgil H. Langtry, argued Lloyd appellant. the cause for V. Weiser briefs & of Portland. Bowles, On were Weiser argued Welsh, of the cause Portland, Edwin J. respondent. M. him briefs Jack With on the were McCarty, McLaughlin Swindells, and Dickson & Portland.

AFFIRMED.

PER CURIAM. modifying from an order a divorce

This is granted in 1951. It transfers the decree Ealph parties Blair, Oscar the children of appellant Nadene herein, and father their Hazel (formerly Blair), re- mother, their Hazel Behe appellant quires a month for to contribute $50 boy years now about nine support children, years age. age girl about seven now giving Shortly matter, in this notice of after operation of the instant appellant moved to gave on the its decision merits. this court until order record and, the entire on the have examined We 245 P2d authority 195 Or Rea, v. of Rea Goldson, 236 P2d are Goldson the conclusion the evidence warrants persuaded change has a sufficient in circumstances that there been of the divorce decree to justify since the entry as made and that the welfare of modification directed. change served children will best costs to with affirmed, plaintiff.