Arnold v. Arnold

• Decision Date: 09 January 1952
• Citation: 193 Or. 490,239 P.2d 595
• Parties: ARNOLD et al. v. ARNOLD.
• Court: Oregon Supreme Court

Page 595

239 P.2d 595

193 Or. 490

ARNOLD et al. v.ARNOLD.

Supreme Court of Oregon.

Jan. 9, 1952.

E. B. McCutchan, of Portland, for the motion.

George E. Birnie, of Portland, contra.

Before BRAND, C. J., and HAY, LUSK, WARNER and TOOZE, JJ.

LUSK, Justice.

The defendant, Vern N. Arnold(appellant here) has filed a motion to modify our decree of dismissal by directing that restitution be made to her of all property and rights lost under the decree of the Circuit Court.In support of the motion defendant submits an affidavit showing that after the Circuit Court entered its decree in favor of the plaintiffsshe complied with it by delivering to the plaintiffs possession of the Hazel Hotel and the personal property therein, the payment of certain moneys, the delivery of certain records, receipts and account books, and by rendering an accounting of the operation and management of the hotel and the payment of moneys determined as the result of such operation.

Our statute provides that this court, when it reverses or modifies a judgment or decree, 'may direct complete restitution of all property and rights lost thereby.'§ 10-812, O.C.L.A.It was held in McFadden v. Swinerton, 36 Or. 336, 355, 59 P. 816, 62 P. 12, that 'When the right depends entirely upon matters dehors the record, the better practice, as we understand the authorities, is for the appellate court to direct that restitution be made to the appellant of all property and rights lost under the judgment, and to remand the cause to the court below for the enforcement of such order in a proper proceeding, upon notice to the parties.Flemings v. Riddick's Ex'r, 5 Grat.[Va.]272;Keck v. Allender, supra[42 W.Va. 420, 26 S.E. 437].'The court said further that the statute'probably contemplates a final judgment of restitution only in cases where the facts appear of record, and not where it is necessary to make proof aliunde by ex parte affidavits.'

In this case the facts do not appear of record.

Contrary to the view of counsel for plaintiffs(with which counsel for defendant appears to agree), that the remedy is discretionary with the court, restitution of moneys paid out, or property delivered under a decree which is subsequently reversed, is a matter of right.Lytle v. Payette-Oregon Slope Irr. Dist., 175 Or. 276, 286, 152 P.2d 934, 156 A.L.R. 894;Coker & Bellamy v. Richey, 108 Or. 479, 483, 217 P. 638;Duniway v. Cellars-Murton Co., 92 Or. 113, 116, 170 P. 298, 179 P. 561;McFadden v. Swinerton, supra, 36 Or. 354, 62 P. 12;Metschan v. Grant County, 36 Or. 117, 119, 58 P. 80.And the rule is no different where the judgment was wholly void, as in this...