Breese v. Bramwell

• Decision Date: 15 November 1921
• Citation: 201 P. 729,102 Or. 76
• Parties: BREESE v. BRAMWELL, SUPERINTENDENT OF BANKS, ET AL.
• Court: Oregon Supreme Court

201 P. 729

102 Or. 76

BREESE v. BRAMWELL, SUPERINTENDENT OF BANKS, ET AL.

Supreme Court of Oregon

November 15, 1921

In Banc.

Appeal from Circuit Court, Crook County; T. E. J. Duffey, Judge.

Suit by R. W. Breese against Frank C. Bramwell, Superintendent of Banks, and another. From orders relative to a temporary injunction, the named defendant appeals Heard on motion to dismiss appeal. Appeal dismissed.

This is a suit in which the complaint is in substance that the defendant Bramwell as superintendent of banks has taken charge of the Crook County Bank, the same being insolvent that during the process of liquidation he has deposited the funds of the Crook County Bank with the Bank of Prineville and has drawn a check on the latter bank in payment of a claim of French & Co. against the insolvent bank, without an order of the circuit court; that the payment of the check will disturb the pro rata distribution of the funds of the insolvent bank, resulting in a preference of French & Co. over the other creditors of the insolvent bank; and finally that the plaintiff is a depositor in the Crook County Bank and entitled to share pro rata in the money paid out to its creditors. On the filing of the complaint the county judge of Crook county issued an order of injunction forbidding the defendants from issuing, cashing, accepting, or paying any check drawn or to be drawn against the funds of the insolvent bank, and especially any check drawn in favor of French &amp Co., until further order of the court. Afterwards the circuit court in which the action was pending modified the order so as to restrain the payment of a check in favor of French &amp Co. only, until further order of the court. Later still the defendant Bramwell appeared specially for the purpose of presenting his motion only, and for no other purpose, and moved the court to set aside the restraining order issued by the county judge, "for the reason that said order was made and entered herein on the same day that the complaint in said cause was filed, before any summons was served and before the cause was prosecuted to final judgment, and execution issued against the Crook County Bank," the insolvent bank. This motion was argued and taken under advisement until a later date, when the court renewed the preliminary injunction and "ordered, adjudged, and decreed that a temporary injunction issue herein against the defendants and each of them, the same to continue in full force and effect until the final determination of this case at which time said injunction is to be dissolved or made perpetual." From these orders the defendant Bramwell has appealed, and the plaintiff moves that the appeal be dismissed for the reasons:

"(1) That no judgment, decree, or final order has ever been made or entered in the above entitled court and cause.

"(2) That the injunction and restraining orders issued, * * * from which the defendant Frank C. Bramwell has appealed, do not affect a substantial right, and do not in effect determine the suit so as to prevent a judgment or decree therein, and are not final orders made in a proceeding after judgment or decree."

Willard H....