Brandt v. Brandt

• Decision Date: 27 January 1902
• Citation: 40 Or. 477,67 P. 508
• Parties: BRANDT v. BRANDT. [1]
• Court: Oregon Supreme Court

67 P. 508

40 Or. 477

BRANDT v. BRANDT. ^[1]

Supreme Court of Oregon

January 27, 1902

Appeal from circuit court, Lane county; J.W. Hamilton, Judge.

Suit by Alice O. Brandt, now Shurtliff, against A. Park Brandt. From an order and decree denying a motion to recall an execution issued on the original decree, defendant appeals. Modified.

In December, 1888, plaintiff instituted a suit for divorce against defendant, on the ground of cruel and inhuman treatment. It is alleged in the complaint, among other things, that plaintiff is without means to prosecute the suit; that $150 is a reasonable attorney's fee for the purpose; that $25 a month is reasonable and necessary as an allowance for the support and maintenance of herself and daughter during the pendency of the suit; that "defendant has and owns property in *** Dakota, and in Multnomah and Lane counties, in the state of Oregon, of the aggregate value of about $9,000; and that he has a good and ample monthly income sufficient to maintain himself and said plaintiff and her said daughter in a suitable manner becoming their station in life." The prayer is for a dissolution of the bonds of matrimony, attorney's fees, and maintenance during the pendency of the suit, and "that she be awarded such other and further relief as the court may deem equitable and just in the premises." A general demurrer by defendant being overruled, on March 8, 1889 based upon an ex parte showing, the court ordered and directed that he pay into court within 30 days $100, for the use of plaintiff, to enable her to prosecute the suit, and the further sum of $20, and a like sum every 30 days thereafter, for her maintenance, until the further order of the court. Later there was an effort on the part of the defendant to obtain a modification of the order, but without avail. On April 20, 1889, a divorce was granted, and it was otherwise decreed that plaintiff recover of defendant $100 as the cost of prosecuting the suit, $28 as living expenses pending the suit, and the further sum of $20 per month from the entry of the decree until the further order of the court as permanent alimony. On December 17, 1897, a writ of execution was issued to the sheriff of Multnomah county directing him to satisfy the sum of $128, with interest at the rate of 8 per cent. per annum from April 20, 1889. By virtue thereof certain real property was levied upon and sold to the plaintiff for the sum of $225.25, and the writ returned satisfied. After the execution of a sheriff's deed it was discovered that the realty sold was not the property of defendant, and on March 17, 1900, the sale was at the instance of plaintiff, set aside, and the satisfaction of the decree canceled, and on the same day another order was entered reviving the decree, wherein it appears to have been found that there was then due and owing on said decree to plaintiff the sum of $2,820.40, and it was ordered and directed that execution issue to satisfy the same. On March 30th an execution was issued in pursuance of the order, directed to the sheriff of Multnomah county, requiring that out of the property of the defendant he satisfy the said sum of $2,820.40 and interest, as specified. On April 27th the defendant filed in said cause a motion to set aside the orders of March 17th, to recall the execution of March 30, 1900, and, further, if it should be determined that said decree had not been heretofore fully satisfied or barred by lapse of time, then that the sum of $20 a month allowed by the original decree be remitted from and after May 2, 1889. The motion was based upon an affidavit of the defendant, which sets out all the proceedings from the entry of the decree and the order directing the issuance of the execution, and shows that the plaintiff was, in January, 1890, married to one W.T. Shurtliff, and lived with him for a time, and was adequately supported by him in the manner to which she had been accustomed, but that Shurtliff had procured a divorce from her. It was also averred that defendant had no knowledge that the decree granting the divorce from him contained the provision for $20 a month permanent alimony, and that he was never apprised or informed of the fact by plaintiff, or any one in her behalf, or requested by her to pay the same. The plaintiff in response filed a counter affidavit, whereby she avers that defendant knew of the provision complained of at the time of its entry, but declared that he would not pay the same, and that, while it was true that she was married again in the month of January, 1890, she was driven to do so by poverty and want, being unable to support herself and daughter; that in the year 1896 her husband deserted her; and that she has since been obliged to earn her living, and is without property or means for her support. The motion was denied, and from the order and decree denying the same defendant appeals.

W.T. Muir, for appellant.

John H. Hall, for respondent.

WOLVERTON, J. (after stating the facts).

It is first insisted that the provision for permanent alimony is in excess of the relief to which the plaintiff was entitled under the averments and prayer of her complaint. Under the prayer for general relief the plaintiff is entitled to such relief as is consistent with the averments and within the scope of the complaint. It is alleged that defendant was possessed of property of the value of $9,000 and had a monthly income amply sufficient for the maintenance of himself, his wife, and her daughter according to their station in life; and, permanent alimony being an incident to the divorce, the provision complained of was within the scope of the complaint, and the relief was authoritatively granted by the decree. 16 Enc.Pl. & Prac. 804, 807, 808; Darrow v. Darrow, 43 Iowa, 411.

It is next insisted that the statute of limitations had run, so that it was not competent for the court to revive the decree and direct the issuance of an execution. This depends upon whether the writ of execution of December 17, 1897, by virtue of which a sale of the property was attempted to be made, was void for uncertainty in describing the decree upon which it was issued. The description is contained in the preamble, and is as follows: "Whereas, on the 20th day of April, 1889 by consideration of the circuit court of the state of Oregon for the county of Lane, Alice O. Brandt, plaintiff, recovered judgment against A. Park Brandt, defendant, for the sum of one hundred and twenty-eight and no/100 ($128.00) dollars, damages and costs, which judgment was enrolled and docketed in the office of the clerk of said court on the 2d day of May, 1889." It will be noted that no reference is there made to the provision for permanent alimony. The statute provides that if, at any time after the entry of the judgment, a period of 10 consecutive years shall have elapsed without an execution being issued thereon, no execution shall thereafter issue, and the judgment shall be conclusively presumed to have been paid. Hill's Ann.Laws, § 295, as amended by Sess.Laws 1893, p. 26. We take it that an execution such as is sufficient, under a decree upon which it is based and issued, to support a deed to property sold under and in pursuance thereof, will be sufficient also to revive, keep alive, or continue in force the decree itself. The analogy is apparent, and the deduction legitimate. Suppose that realty should be sold under the execution now in the hands of the sheriff, and the purchaser's title was questioned. Would the execution of December 17, 1897, be received as evidence to show that the decree was not barred by the 10 years' lapse of time? If sufficient to support a deed in the first instance, it surely would be sufficient to show a live judgment or decree when the execution was issued under which the sale was made. Now, the inquiry to be made, where the execution is offered in support of a deed, is: Did it issue on the decree that is produced to support it? If it is manifest from the writ, taken in its entirety, that it did, then it must be held to...