Bush v. Geisey

• Decision Date: 07 June 1888
• Citation: 19 P. 123,16 Or. 355
• Parties: BUSH v. GEISEY.
• Court: Oregon Supreme Court

19 P. 123

16 Or. 355

BUSH v. GEISEY.

Supreme Court of Oregon

June 7, 1888

Appeal from circuit court, Marion county.

(Syllabus by the Court.)

When the trial of a case, involving an issue of fact, is had without a jury, and the court directs a judgment, but fails to give a decision in writing stating the facts found and conclusions of law, as required by the Code, such judgment is irregular, and should be set aside upon the attention of the court being called to the fact.

A judgment so entered is not void, but may be reduced so either upon motion to the court in which it is entered, or upon appeal to a superior court.

Where in proceedings of mandamus to compel the defendant, who is county treasurer, to pay the plaintiff warrants held by him, duly drawn upon the defendant as such treasurer, it is ascertained, in an issue made upon the return of an alternative writ, that the defendant had funds sufficient to pay such warrants at the time they were presented to him, applicable to the payment thereof, and that the warrants presented were legal claims against the county, held, that the judgment should direct the issuance of a peremptory writ, commanding the defendant to pay the warrants forthwith.

The right of a plaintiff in a mandamus proceeding to recover costs, under the Code of this state, does not depend upon his claiming or recovering damages therein. He is entitled to costs as a matter of course, upon obtaining the relief sought.

Geo. H. Burnett, for appellant.

Tilmon Ford, for respondent.

THAYER J.

This case arises out of a proceeding of mandamus. The writ was issued out of said circuit court upon the petition of the appellant, to compel the respondent, as treasurer of said county of Marion, to pay certain warrants drawn upon him by the county clerk of said county, in favor of the appellant, and purporting to have been drawn by order of the county court of said county. The respondent refused to pay the warrants on their being presented to him, upon the alleged grounds that they had been issued without authority. The case was tried before Hon. R.P. BOISE, judge of said circuit court, without a jury, upon the petition, alternate writ, the return thereto, and proofs taken therein. It appears from the record that the trial was had on the 13th day of July, 1887, and that upon its submission the court, without finding the facts or conclusions of law, directed a judgment in favor of the appellant in accordance with the prayer of his petition, and that a judgment was so entered; that subsequently, and on the 30th day of August, 1887, during the term of court at which the said judgment was entered, the respondent filed a motion to set it aside, upon the ground that such findings had not been made, and on the same day the appellant's counsel filed a motion, based upon an affidavit, to correct the omission by making and filing such findings nunc pro tunc; that, after argument of the two motions, the court set aside said judgment, and proceeded to find the facts and conclusions of law, which were duly filed.

The following is the substance of the facts found: (1) That the respondent was the treasurer of said Marion county. (2) That on the 6th day of May, 1887, said county court, sitting as a board of commissioners, duly authorized said county clerk to draw the warrants, by an order made for that purpose, which was entered of record. (3) That the said clerk duly executed such order. (4) That in the month of November, 1887, the said clerk filled out two warrants upon the treasurer, respectively, for $10,000 and $5,000, and delivered them to T.C. Shaw, who was county judge of said county, and he delivered them to appellant, and obtained from him the amount thereof in money, and used it for the benefit of said county. That the money received by the county judge was not paid into the treasury of the county; but was paid to the city of Salem, to aid the city in building a bridge across the Willamette river, to connect Marion county with the county of Polk. (5) That said appellant was not advised for what purpose said money was to be used. (6) That prior to the time when said two warrants were executed, and the money advanced by appellant thereon, there was an understanding between him and the county court, sitting to transact county business, that he would furnish money to the county, at 8 per cent., on county warrants, to enable the county to meet current expenses, when it had no money in its treasury for that purpose, and be reimbursed when the money came into the treasury from taxes; and that appellant furnished the money on the two warrants as a loan to the county in pursuance of that understanding. (7) That the warrants in question were issued in lieu of said two warrants, and the interest which had accrued thereon. (8) That the appellant presented the warrants in question (16 in number) to the respondent, as such treasurer, for payment or indorsement, and that respondent refused to pay or indorse them. (9) That, at the time said warrants were so presented to respondent as aforesaid, he had in his possession, as such treasurer, sufficient funds belonging to said county to pay them, and which funds were applicable to their payment. As conclusions of law the court found: (1) That the said 16 warrants were valid and legal claims against said county. (2) That the appellant was the legal owner and holder of them. (3) That it was the duty of the respondent to pay or indorse the same when presented by the appellant. (4) That said warrants should draw interest at 8 per cent. per annum from the date of their presentment,--the 6th day of May, 1887.

Upon these findings of facts and law, the appellant's counsel moved the said circuit court for a judgment commanding the respondent to pay to the appellant the amount due upon the warrants, and for costs; which motion the court refused to grant, but directed a judgment in favor of the appellant, and against the respondent, to the effect that the latter pay to the former the amount of said warrants and interest, out of any money in his hands as such treasurer, belonging to said county, applicable to the payment of current expenses; and that, in case there were no funds in the said county treasury sufficient to pay all said warrants, then that he pay thereon what money there was in said treasury at the time of the service of said writ applicable thereto as aforesaid, and that the remainder be paid out of the first money that should come into said treasury which was applicable to the payment thereof. And the said court further directed and decided that neither party recover costs or disbursements. The judgment entered in pursuance of said findings is the judgment appealed from herein.

The main grounds of error relied upon by appellant's counsel are the setting aside of the judgment entered July 13, 1887 the refusal to allow the appellant's costs in the proceedings upon the writ of mandamus; and for not rendering a judgment directing a peremptory mandamus, commanding the respondent to immediately pay the amount due upon said warrants, with the accrued interest thereon, from the 6th day of May, 1887, at the rate of 8 per cent. per annum. The transcript contains no bill of exceptions, and we have no data by which to determine the questions involved in the case, except the findings of the court referred to. As to the right of the circuit court to set aside the judgment entered July 13, 1887, there can be no doubt. Courts have control of their own records, and are authorized to correct them so as to make them conform to the truth. Where a case involving a...