Brauer v. City of Portland
| Citation | 60 P. 378,35 Or. 471 |
| Parties | BRAUER v. CITY OF PORTLAND. |
| Decision Date | 05 March 1900 |
| Court | Oregon Supreme Court |
On motion to recall mandate. Motion sustained unless remittitur accepted.
For former opinion, see 58 P. 861.
This is a motion to recall the mandate, that the judgment may be corrected. The record shows that on September 7, 1897 plaintiff having recovered a judgment for the sum of $9,556.50, with interest at the rate of 8 per cent. per annum from the time the action was commenced, January 6, 1897 until paid, the defendant appealed, giving an undertaking for a stay of proceedings, with Sylvester Pennoyer and Frank Hacheney as sureties. The judgment having been affirmed in this court November 6, 1899 (59 P. 117), a mandate requiring the trial court to render judgment against the appellant and said sureties for the sum of $10,068.30, with interest since September 7, 1897, at the rate of 8 per cent per annum, was sent down, and judgment given as therein directed. An execution having been issued on said judgment in pursuance of which the property of one of the sureties was seized to satisfy the same, it is contended by appellant's counsel that the mandate directs the entry of a judgment for a greater sum than that originally given in the court below, and requires the payment of interest in excess of the rate prescribed by law. The interest on $9,556.50, at the rate of 8 per cent. per annum from the time the action was commenced until judgment was originally given is $511.80. It will be remembered that the mandate directed the entry of a judgment for the sum of $10,068.30, with interest thereon from September 7, 1897, thereby requiring the appellant and its sureties to pay $88.59 as interest on $511.80 at said rate from the time the judgment was originally given until it was affirmed. The statute provides that upon an appeal this court may affirm, reverse, or modify the judgment or decree appealed from, in the respect mentioned in the notice, and not otherwise. Hill's Ann.Laws Or. § 544. If it be assumed that judgment should originally have been given for the sum of $10,068.30, the failure of the trial court in this respect is not assigned as error in the notice of appeal, and so this court in such case could only affirm the judgment; and, having done so, the mandate should have directed the entry of a judgment for the sum of $9,556.50 only, with interest thereon from the time the action was commenced. At the time the judgment was originally given the statute prescribed that the rate of interest in this state should be 8 per cent. per annum, and no more, on judgments for the payment of money. Id. § 3587. This section was amended by an act of the legislative assembly which took effect October 14, 1898 changing the rate of interest on such judgments to 6 per cent. Laws Or. 1898, p. 15. It is insisted that after October 14, 1898, the rate of interest on the judgment should have been no more than 6 per cent. per annum; but, the trial court having been directed to give judgment for interest after that date at the rate of 8 per cent. per annum, the mandate should be recalled on that account, and corrected in this respect. In Seton v. Hoyt, 55 P. 967, 43 L.R.A. 634, it was held by this court that a county order indorsed by the treasurer, prior to the passage of said act of October 14, 1898, "Not paid for want of funds," created an implied contract between the county and the holder of such order that it should continue to draw interest at the rate of 8 per cent. per annum until paid, notwithstanding the amendment changing the rate of interest. To the same effect see Shipley v. Hacheney (Or.) 55 P. 971. In Railway Co. v. Patton (Tex.Civ.App.) 35 S.W. 477, it is held that a judgment, with interest thereon at the legal rate, affirmed by the supreme court, is not affected by subsequent legislation reducing the legal rate of interest, unless the statute so declares. In Butler v. Rockwell (Colo.Sup.) ...
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