Beekman v. Hamlin

• Decision Date: 26 December 1892
• Citation: 23 Or. 313,31 P. 707
• Parties: BEEKMAN v. HAMLIN.
• Court: Oregon Supreme Court

31 P. 707

23 Or. 313

BEEKMAN v. HAMLIN.

Supreme Court of Oregon

December 26, 1892

Appeal from circuit court, Jackson county; LIONEL R. WEBSTER, Judge.

Motion by C.C. Beekman against James Hamlin for leave to issue execution on a dormant judgment. From a judgment for defendant, plaintiff appeals. Reversed.

For former reports, see 24 P. 195, and 25 P. 672.

P.P. Prim & Son, C.W. Kahler, and J.F. & E.B. Watson for appellant.

Francis Fitch and W.W. Cardwell, for respondent.

LORD C.J.

This was a motion, under section 295, Hill's Code for leave to issue execution upon a dormant judgment. The verdict and judgment were for the defendant.

It is first objected that the admission of the assessment rolls of Jackson county for the years of 1873 to 1880 was error. The ground of the objection is that the property, real and personal, described in such rolls, is not even prima facie evidence that the person named in them is in fact the owner of such property, as against the plaintiff; and that, if this is so, the assessment rolls received in evidence were not competent to prove that the defendant was solvent during the period covered by them, as that would depend on the defendant's ownership of the property described in them. The record discloses that among the excuses or reasons pleaded by the plaintiff for allowing so long a period as 26 years to elapse before he made any effort to enforce the judgment he had recovered against the defendant was that the defendant had no property during that time subject to execution, and that he was unable to pay his debts, or was insolvent, so that, if he had issued execution, it would have proved unavailing, besides involving additional costs. To account for his delay, and explain the reason of it, the plaintiff sought to show that during the intervening period the defendant was unable to pay his debts, or was not solvent; and, as a circumstance tending to show it, and rebut the presumption of payment, he offered in evidence the assessment rolls for 1871 and 1872, as showing that he had no assessable property during those years. To counteract the effect of this evidence, and to show that the explanation of the plaintiff for his delay in not enforcing the judgment sooner was not sustained by the kind of proof he had introduced and the court had admitted, the defendant offered in evidence the assessment rolls from 1873 to 1880, as showing that he had assessable property during those years and that such property, real and personal, was so assessed to him as the reputed owner of it. For this purpose the court admitted the evidence, and not as establishing the defendant's title to the property described in such assessment rolls, or any question of disputed ownership in regard to such property, for there was no such issue involved. The object of the evidence was to show that the inference of insolvency which the plaintiff sought to raise in explanation of his delay to enforce the judgment so as to rebut the presumption of its payment was not well taken, as the same kind of proof during other years, within the intervening period, proved otherwise. Under the circumstances disclosed by this record, and restricted to this purpose, we think the evidence was competent and admissible.

It is next objected that the court erred in refusing to give the following instruction: "One of the principal allegations which it is necessary for the plaintiff to establish in this case is that the judgment has not been paid. The evidence of the plaintiff, if entitled to full credit, and uncontradicted, is sufficient to establish that fact." In order to understand the object of this instruction, and whether or not it ought to have been given, or was properly refused, it is necessary to examine the instructions given by the court. The court, after making some comments, instructed the jury that "more than twenty years have elapsed since the judgment in controversy was rendered, and no execution has ever been issued upon it. For that reason the law presumes that the judgment has been paid. The burden of proof is on the plaintiff, Beekman, to show that it has not been paid, and this he must show by a preponderance of the evidence. This presumption may be overcome by any competent evidence which convinces the jury by a preponderance of the evidence that the judgment has not been paid. The court instructs you that the presumption of payment, after the lapse of twenty years, is one which must be considered by you as a fact in evidence, showing payment of the judgment; and, unless this presumption is rebutted by satisfactory and convincing evidence, you must find a verdict for the defendant." It will be observed that the presumption of payment, after the lapse of 20 years, to be considered by the jury as a fact showing payment of the judgment, was accorded its full weight, and decisive of the case in favor of the defendant, unless rebutted by satisfactory and convincing evidence. The object of the instruction asked was to explain and define more fully the nature of the satisfactory and convincing evidence required to rebut such...