Ah Lep v. Gong Choy
| Decision Date | 25 May 1886 |
| Citation | 11 P. 72,13 Or. 429 |
| Parties | AH LEP v. GONG CHOY and another. |
| Court | Oregon Supreme Court |
Motion to set aside judgment and correct mandate.
W.H Adams, for the motion.
W Scott Beebe, contra.
The judgment appealed from herein was reversed as to the appellant Gong Wing, and affirmed as to the appellant Gong Choy. See 9 P. 483. A mandate was sent to the circuit court to be entered therein; but the judgment not having been given against the sureties upon the appeal, the respondent's counsel applied to this court to have it corrected in that particular. The judgment was accordingly given against the sureties, and another mandate sent down. The appellant's counsel thereupon filed a motion in this court to set aside the latter judgment, and recall the mandate last sent. The question presented for our consideration at this time is whether the judgment was properly given against the sureties as the respondent, after the notice of appeal was served, and the undertaking given to stay the proceedings was executed and filed, gave a counter-undertaking, and attempted to enforce the judgment notwithstanding the appeal and undertaking for stay of proceedings. The course pursued by the counsel in this matter has occasioned annoyance and embarrassment to the clerk of this court in having to make the various changes in his record of the proceedings of the case. It could all have been avoided if they had given proper attention to the entry of the judgment in the first instance. Such questions should be brought before the court prior to any entry of judgment, and settled. Then, a proper entry could be made, and all confusion in the matter prevented. It is very doubtful whether this court has authority to recall or change a mandate after it has been transmitted to the court below. Though we have been inclined to entertain questions bearing upon the rights of the parties, which have arisen after a final record has been made up, we think however, that it is much better practice to have them considered before the entry of the judgment or decree of the court, and have the record made understandingly. A little attention to such matters upon the part of counsel would save them trouble, and relieve the clerk of much perplexity.
We take this occasion to call the attention of counsel generally to the subject, as the proceedings in this case have strongly impressed upon the mind of the court the necessity of observing the practice suggested. We have considered the motion upon its merits, and concluded that it will have to be denied. Subdivision 4 of section 536 of the Civil Code provides that, "if judgment or decree be given against the appellant, it shall be entered against the sureties also in like manner and with like effect, according to the nature and extent of their undertaking." The language of the provision is peremptory, and is subject to no exceptions that we are able to discover. Section 530 of [11 P. 73.] the Civil Code provides ...
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