Blair v. Blair

• Decision Date: 09 September 1952
• Citation: 247 P.2d 883,199 Or. 273
• Parties: BLAIR v. BLAIR.
• Court: Oregon Supreme Court

Page 883

247 P.2d 883

199 Or. 273

BLAIR v. BLAIR.

Supreme Court of Oregon, En Banc.

Submitted Aug. 13, 1952.

Decided Sept. 9, 1952.

Weiser & Bowles, of Portland, for the motion.

McCarty, Dickson & Swindells, of Portland, contra.

BRAND, Chief Justice.

On the 8th day of March, 1951, the circuit court of Multnomah County entered a decree based upon an order of default after personal service, awarding to the plaintiff, Hazel Nadine Blair, a divorce from her husband, Ralph Oscar Blair, and awarding to the defendant, with the consent of the plaintiff, the custody and control of the minor children. On March 31, 1952, the plaintiff filed a motion for modification of the decree and for an order awarding to her the custody of the minor children, together with money for their support. On July 8, 1952, after a hearing, the court made an order for change of custody in substantial compliance with the prayer of the plaintiff and directed the defendant to deliver the minor children to the plaintiff 'forthwith.' On the same day the defendant served notice of appeal to this court, and on the 11th day of July, 1952 there was filed in said court an undertaking for costs on appeal wherein the surety undertook and promised to pay all damages, costs and disbursements which may be awarded on appeal. The bond provided, however, 'but this undertaking does not stay the proceedings in this cause.' On the 18th day of July, 1952, the defendant made application in this court for a writ of supersedeas and stay of proceedings concerning the transfer of custody from defendant to plaintiff. On July 23, 1952 the plaintiff filed objections to the application. Briefs were filed and considered. The application was denied by this court on the 28th day of July 1952 and the parties were duly notified. Because of the importance of the question involved it has been thought appropriate that the matter should be covered by written opinion.

Two contentions are presented by the defendant in his application for a writ of supersedeas and stay of proceedings. He contends that under the provisions of O.C.L.A. § 10-804 and § 10-805, the notice of appeal and the undertaking for costs and damages operates without further order to stay the proceedings pending the decision of this court upon the appeal of the cause. If his contention is correct, it would follow that he would be permitted to retain custody of the minor children until the decision of the appeal in this court, notwithstanding the fact that the circuit court, after full hearing, has ordered that the defendant deliver the minor children to the plaintiff forthwith. The defendant's second contention is, that if it should be held that the cost bond did not stay the operation of the decree modifying custody, this court has the power to issue a writ of supersedeas for the purpose of preventing the transfer of custody of the children to the mother until the final determination of the decree in this court. We will first consider whether the filing of an appeal and cost bond operates to stay the enforcement of an order transferring custody. In Sakraida v. Sakraida, 192 Or. 217, 217 P.2d 242, 243, 233 P.2d 762, a similar situation was presented. A decree for custody of a minor child was modified so as to award custody to the father. The appellant served and filed a notice of appeal and gave an undertaking to pay all damages, costs and disbursements which might be awarded against her on the appeal. The child was in the actual custody of the father and the mother moved for an order restoring the custody to her pending the appeal, on the ground that the appeal bond stays the proceedings. This court cited the provisions of O.C.L.A. §§ 10-804 and 10-805 and then said:

'Whether the quoted portion of § 10-805 is applicable in any circumstances to a case of this kind is a question left in doubt by our decisions. In Bestel v. Bestel, 153 Or. 100, 44 P.2d 1078, 53 P.2d 525, it was held that on appeal from an order granting the custody of a child, the undertaking mentioned in § 10-805 was sufficient in and of itself to stay the proceedings and that no separate order by the court for this purpose was necessary. It was there assumed that an appeal from such an order was governed by § 10-805. The decision was upon authority of In re Vinton, 65 Or. 422, 132 P. 1165. The construction announced in these cases is not in harmony with what was said on the subject in the later case of In re Workman's Estate, 156 Or. 333, 353, 65 P.2d 1395, 68 P.2d 479. * * *'

It was unnecessary for the court to resolve the conflict of authority to which reference was made in Sakraida v. Sakraida, because of the fact that the father had already acquired the possession of the child and there was therefore nothing which could be stayed by a bond.

We must now determine whether a bond such as was given in this case operates to prevent the carrying out of the decree of the circuit court awarding a change of custody.

In Re Workman's Estate, 156 Or. 333, 65 P.2d 1395, 1401, 68 P.2d 479, an appeal was taken from an order which rejected the application of one person for appointment as administrator and which appointed another to that office. The court said:

'The appeal from the part of the order which refused to appoint the appellant stayed nothing because that part of the order was self-executing and required no affirmative action. * * *'

The next question considered was whether under the provisions of O.C.L.A. §§ 10-804 and 10-805 the order appointing the administrator was stayed by the filing of the appeal and cost bond. The court gave full consideration to the provisions of the statute and said:

'* * * We do not believe that the Legislature by this enactment intended to stay all proceedings in the numerous cases where the relief sought does not consist of money, property, or the execution of a conveyance; * * *.'

It was held that the appeal and cost bond did not stay the operation of the order appointing an administrator.

In Bestel v. Bestel, 153 Or. 100, 44 P.2d 1078, 53 P.2d 525, this court said:

'Assuming this to be a case governed by the final sentence of section 7-505, Oregon Code 1930 [now O.C.L.A. § 10-805], which provides that 'In cases not provided for in such subdivisions * * * [subdivisions 1, 2, 3 and 4, O.C.L.A. § 10-804] when an appeal is perfected, with an undertaking for the appeal only, proceedings shall be stayed as if the further undertaking thereof had been given,' the filing of plaintiff's undertaking on appeal operated to stay proceedings pending appeal. * * *'

In view of the able analysis of the statute in Workman's case, we cannot longer 'assume' that an order changing the custody of a ward of the court is governed by the final sentence of O.C.L.A. § 10-805. We approve the reasoning of the Workman case and deem it unnecessary to repeat what was said there. The quoted statement from Bestel v. Bestel is overruled.

The Bestel decision was based upon the decision in In re Vinton, 65 Or. 422, 132 P. 1165, 1166. In that case the defendant was sentenced to imprisonment for contempt of court and the sentence was executed, notwithstanding the fact that he had appealed to the Supreme Court and had given an undertaking 'conditioned that the defendant would pay all damages, costs, and disbursements awarded against him on appeal in that proceeding, and that if the judgment of contempt should be affirmed, either in whole or in part, he would satisfy the same so far as affirmed. * * *' The defendant brought an original proceeding in habeas corpus and was discharged from custody by this court upon the ground that the execution of the order of imprisonment was stayed by the service and filing of the notice of appeal and undertaking in the contempt proceeding. It is unnecessary to decide by what means a commitment to prison in a contempt case may be stayed, but, insofar as the Vinton case may be deemed to be authority for the ruling in the Bestel case, it is overruled. In the case at bar we hold that the operation of the order changing the custody of the minor children was not stayed by the giving of the notice of appeal and cost bond. To rule otherwise might in some future case have tragic results, leaving a child in the custody of an unworthy person for the period of the appeal, and leaving the court helpless to protect its own ward.

We turn to the defendant's second contention which is that this court has inherent power to issue a writ of supersedeas which would stay the enforcement of the decree changing custody pending decision of the appeal and that we should exercise that power in the pending case. We will consider first the question of power.

In Livesley v. Krebs Hop Company, 57 Or. 352, 97 P. 718, 720, 107 P. 460, 464, 112 P. 1, the plaintiff brought suit to enjoin the defendant corporation from enforcing by execution a judgment which had been rendered in favor of the defendant and against the plaintiff. The insolvency of the defendant was alleged and the issues were 'of a class concerning which eminent counsel may differ'. The trial court dismissed the suit. The plaintiff appealed to this court and filed a petition for a restraining order to stay the execution pending a hearing on the merits. The restraining order was issued. The court said:

'* * * the threatened enforcement by execution of the judgment, which is the subject of this suit, would operate to satisfy the judgment, and thus nullify any decree this court might render relating thereto, or at least render such a decree difficult of enforcement. * * *' The court added:

'The grant of appellate jurisdiction, whether made by the Constitution or by statute, necessarily vests in such court all powers of an incidental nature required to make the granted jurisdiction effective. * * *'

The court referred to B. & C. Section 420, now O.C.L.A. § 9-404, concerning the power of a circuit court to issue injunctions pending suit and said:

'And in a case in the...