Abrahamson v. Northwestern Pulp & Paper Co.

• Decision Date: 22 November 1932
• Citation: 15 P.2d 472,141 Or. 339
• Parties: ABRAHAMSON et al. v. NORTHWESTERN PULP & PAPER CO. et a.
• Court: Oregon Supreme Court

15 P.2d 472

141 Or. 339

ABRAHAMSON et al. v. NORTHWESTERN PULP & PAPER CO. et a.

Supreme Court of Oregon

November 22, 1932

Rehearing Granted Dec. 20, 1932.

In Banc.

Appeal from Circuit Court, Clackamas County; George R. Bagley Judge.

Suit by E. J. Abrahamson and others against the Northwestern Pulp &amp Paper Company and others. From a judgment for defendants plaintiffs appeal.

Appeal dismissed.

A. G. Beattie, of Oregon City (Burr Tatro, of Oregon City, on the brief), for appellants.

Jay Bowerman, of Portland, for respondent Amadee M. Smith.

A. C Fulton, of Astoria, for respondents Frank Patton and G. Clyde Fulton.

J. O. Stearns, Jr., of Portland (Griffith, Peck & Coke, of Portland, on the brief), for respondent B. T. McBain.

Alfred P. Dobson, of Portland, for respondent Robert T. Jacobs.

Roy F. Shields, of Portland, for respondent Charles W. Miller.

BROWN J.

In this case more than one hundred and twenty-five plaintiffs filed suit against the Northwestern Pulp & Paper Company, an Oregon corporation, and certain of its directors, for the recovery of money and account of the alleged fraudulent sale of stock by that corporation to plaintiffs. The amended complaint alleges, in substance, that, in order to induce the plaintiffs and the public at large to purchase the stock, the defendants caused to be circulated among prospective purchasers of the stock throughout the state of Oregon a prospectus which contained false and fraudulent representations, among them the following, against which the plaintiffs' complaint is chiefly directed: "The purpose of this issue is to furnish the working capital, as the entire major financing for the construction of the pulp mills, utility mills and by-products plant has been completed and contracted for by Eastern financiers."

The plaintiffs averred that this representation was wholly false and known to be false by all of the defendants, for the reason that, in truth and in fact, no contract had been entered into by the defendants with Eastern financiers for the major financing of the mills mentioned therein. They alleged that the defendant corporation had sold over $200,000 worth of stock and collected over $200,000 from stock subscriptions, which money was expended, but that the mills were never built. They further alleged that, upon discovering the fraud, they made demand upon the defendants for the return of the moneys paid by them, which demand was disregarded by the defendants. The plaintiffs tendered into court the stock so issued to them, and prayed for an accounting as to the amount due to them, for a judgment for $89,675.00, i. e., the amount involved in the suit, and asked "that the court appoint a receiver to collect said judgment and distribute the money collected thereon to plaintiffs in accord with their respective pro rata interests therein."

The purchases of the several plaintiffs were made on different dates, in varying amounts, but on the same form of contract. Attached to the amended complaint is an exhibit designated "Exhibit C," which sets out the amount of money paid for stock by each individual plaintiff, and indicates the character of the stock and the number of the stock certificate representing the stock purchased by each.

Defendants Herman Kolberg, Northwestern Pulp & Paper Company, Robert T. Jacobs, Charles W. Miller, and B. T. McBain, all answered separately and denied generally except as to certain admissions of former matter. Defendants Frank Patton, G. Clyde Fulton, and Amadee M. Smith moved to strike plaintiffs' amended complaint, on the ground that it alleged more than one cause of suit not separately stated. The motion to strike was granted, and the plaintiffs were allowed up to and including September 21, 1931, in which to file a second amended complaint, but they elected to stand on the first and appeal to this court.

On their appeal the plaintiffs assign error of the court in striking out their amended complaint, and particularly in striking that pleading as to defendants that had answered.

It is asserted by certain of the defendants that the plaintiffs' appeal is premature and should be dismissed for the alleged reason that no appealable order has been entered. They contend that the order of the court striking out the plaintiffs' complaint and allowing them to amend is not a final order and therefore not appealable.

If the order of the trial court is not appealable, this court is without jurisdiction to determine the cause upon the merits. It therefore becomes necessary first to determine when an order is appealable. In this connection we direct attention to section 7-501, Or. Code 1930, which reads: "A judgment or decree may be reviewed on appeal as prescribed in this chapter and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, or an interlocutory decree in a suit for the partition of real property, defining the rights of the parties to the suit and directing sale or partition, or a final order affecting a substantial right, and made in a proceeding after judgment or decree, or an order setting aside a judgment and granting a new trial, for the purpose of being reviewed on appeal, shall be deemed a judgment or decree. ***"

The question of the right of appeal as set down in our Code has many times been the subject of discussion and controversy in this jurisdiction. It was thoroughly digested in Carmichael v. Carmichael, 101 Or. 172, 199 P. 385 387, and in delivering our opinion in that case we quoted with approval the following excerpt from 17 Standard Procedure, 658-660: "The test of the jurisdiction of the court to grant relief is not whether good cause for granting the relief exists, but whether the tribunal assuming to act had power to enter upon the inquiry in the particular case or grant the relief for any cause, and this must be sought for in the general nature of the powers of the court or the general laws defining its jurisdiction. It does not depend upon whether its conclusion in the course of it is right or wrong, nor whether its methods were regular. *** The jurisdiction...