Aldrich v. Forbes
| Decision Date | 08 October 1963 |
| Citation | 237 Or. 559,385 P.2d 618 |
| Parties | Frederick C. ALDRICH and Magdalene Aldrich, Respondents, v. Ben F. FORBES and Dorothy V. Forbes, Appellants. |
| Court | Oregon Supreme Court |
David P. Templeton and Dusenbery, Martin, Beatty & Parks, Portland, on the motion.
No appearance contra.
This cause is before us upon a motion made by the plaintiffs-respondents
'* * * for an order striking or declaring null and void the papers filed by Palma J. Whitney Guthrie and Viola W. Whitney on or about January 22, 1963, entitled 'Renunciation' on the grounds and for the reasons that no application was made and no order entered authorizing Palma J. Whitney Guthrie and Viola W. Whitney to renounce their obligations under the undertaking filed on this appeal.
'Alternatively and in the event this foregoing motion is denied, plaintiffs move for dismissal of this appeal on the grounds that the defendants have not filed a sufficient undertaking with two or more sureties as required by statute.'
The document entitled 'Renunciation,' signed by Palma J. Whitney Guthrie, to which plaintiffs' motion refers, reads:
'Be it remembered that I, Palma J. Whitney Guthrie, whose name is subscribed to that certain undertaking filed in the within cause on the 27th day of September, 1957, at the hour of 4:25 p. m. which undertaking purports to create joint and several liability with defendants and Viola W. Whitney and Kenneth J. Guthrie, to which undertaking exceptions to the sureties were filed by plaintiff on the 31st day of December, 1962, do hereby renounce and rescind said undertaking and any and all liability thereon, on the grounds and for the reason that the extent of my liability thereon was not fully explained, nor accurately represented to me at the time of the subscription thereof.'
Concurrently with the filing of that document there was filed another, likewise entitled 'Renunciation,' which bore the signature of Viola W. Whitney. It was couched in the exact language of the above with the exception of the needed change in the name of the co-surety.
The proceeding out of which the two 'renunciations' and the motion to strike them arose was an action which the circuit court construed as a Forcible Entry and Wrongful Detainer Proceeding. The defendants in it were Mr. Ben F. Forbes and his wife. The subject matter of the action was a city lot and a dwelling house which the Forbes occupied as tenants. Upon the trial of the action judgment was entered for the plaintiffs. Thereupon, the defendants (Forbes) gave notice of appeal and in so doing filed the undertaking on appeal which bore the signatures of Palma J. Whitney Guthrie, Viola W. Whitney, and a third individual as sureties.
There has been filed in this court the abstract of record together with the appellant's (Forbes') brief and the brief of the respondents (the owners). The case is ready for oral argument. The question now occurs as to whether a surety on an appeal undertaking may rescind his liability at his pleasure. If he may, then his principal (the appellant) may, while the undertaking is in effect, dispose of his assets and after he has done so, the surety may rescind the undertaking.
The statutes which we will now quote provide the conditions and covenants of the appeal bond. They are binding upon the surety, appellant and respondent. It is no misstatement to say that they are a part--an inseparable part--of every undertaking on appeal.
ORS 19.040(1) provides:
'The undertaking of the appellant shall be given with one or more sureties, to the effect that the appellant will pay all damages, costs and disbursements which may be awarded against him on the appeal; but such undertaking does not stay the proceedings, unless the undertaking further provides to the effect following:
* * *
* * *
'(b) If the judgment or decree appealed from is for the recovery of the possession of real property * * * that during the possession of such property by the appellant he will not commit, or suffer to be committed, any waste thereon, and that if such judgment or decree or any part thereof is affirmed, the appellant will pay the value of the use and occupation of such property, so far as affirmed, from the time of the appeal until the delivery of the possession thereof, not exceeding the sum therein specified, to be ascertained and tried by the court or judge thereof.'
ORS 105.160, which is a part of our Forcible Entry and Wrongful Detainer statute, states:
'If judgment is rendered against the defendant for the restitution of the real property described in the complaint, or any part thereof, no appeal shall be taken by the defendant from the judgment until ...
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