Case v. Fox

• Decision Date: 26 January 1932
• Parties: CASE v. FOX et al.
• Court: Oregon Supreme Court

7 P.2d 267

138 Or. 453

CASE v. FOX et al.

Supreme Court of Oregon

January 26, 1932

Department 1.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Clinton A. Case against James E. Fox and another. From a judgment in favor of plaintiff, defendants appeal.

Affirmed.

Harlow L. Weinrick, of Eugene (D. D. Hail, of Portland, on the brief), for appellants.

Clark Kendall and A. K. McMahan, both of Albany (Frank B. Mitchell of Portland, on the brief), for respondent.

ROSSMAN, J.

The notice of appeal states that this is an appeal "from that certain judgment entered in this action." Appellants' brief states: "The appeal is from an order settling the Findings, over appellants' objection by a judge other than the trial judge, also from an order disallowing appellants' Bill of Exceptions, the same not having been settled before the death of the trial judge and were presented to and disallowed by the judge who gave judgment after the death of the trial judge." We shall regard the appeal as though the latter question was included within it.

The action, which was begun by a complaint alleging that the defendants had failed to pay the plaintiff the reasonable value of services performed by the plaintiff, at the defendants' request, for the parents of the latter, was tried October 6, 1930, by the late John H. Stevenson, judge of department No. 4 of the circuit court of Multnomah county without a jury. November 17, 1930, Judge Stevenson signed findings of fact and conclusions of law in favor of the plaintiff. These findings determined every issue made in the pleadings and were followed with conclusions of law which declared the "plaintiff is entitled to a judgment against the defendants and each of them for the sum of Fifteen Hundred Thirty-four and 59/100 Dollars, together with interest thereon at the rate of six per cent per annum from November 1, 1928, and for the further sum of $300.00 attorney's fees, together with Plaintiff's costs and disbursement incurred herein."

November 26, 1930, Judge Stevenson departed this life. November 29 1930, the aforementioned findings of fact and conclusions of law were filed by the clerk of the circuit court. November 28, 1930, the defendants presented to the circuit court a document entitled "Objections to Proposed Findings of Fact and Conclusions of Law" which objected to the findings "for the reason that the said findings of fact and conclusions of law do not conform to the evidence; *** there is no evidence introduced in this case supporting the said findings of fact and conclusions of law; *** the said findings of fact and conclusions of law are not supported by any evidence introduced in the trial of this case; *** the said findings of fact and conclusions of law were not signed by the court or filed within 20 days of the time of hearing the said evidence; *** if the said findings of fact and conclusions of law were ever signed by the Honorable John H. Stevenson, that the said judge was physically and mentally in such a weakened condition because of his illness that he could not properly consider the said submitted findings of fact and conclusions of law for the reason that the late John H. Stevenson was confined in the hospital and in an extremely weakened condition and very ill when the said findings of fact and conclusions of law were purported to have been signed; *** that the trial judge in the above entitled action has departed this life, and that it is impossible to present to him objections to the proposed findings or any part thereof, and is impossible to present to him different, other, and additional findings; and *** the said findings of fact and conclusions of law are not in accordance with the tentative verbal decision made by the Honorable John H. Stevenson and conveyed to the defendants by word of mouth."

January 24, 1930, the Honorable Louis P. Hewitt, judge of department No. 5 of the circuit court of Multnomah county, signed the judgment in this cause which is preceded by a recital that "the court having heard the arguments of counsel for the respective parties and having examined defendants' said objections to said findings of fact and conclusions of law and all of the records and files herein, and after a consideration of the evidence adduced at the trial of the cause, finds the objections of said defendants to the findings of fact and conclusions of law made by John H. Stevenson, Judge of the above entitled court and the judge before whom said cause was tried, are not well taken. It is, therefore, hereby ordered by the court that the objections of said defendants and each of them to the aforesaid findings of fact and conclusions of law are hereby overruled *** it now appearing to the court that the findings of fact and conclusions of law heretofore mentioned are true and correct."

It thus appears that the only objections which the defendants have voiced to the findings of fact prepared by Judge Stevenson were five in number: (1) They do "not conform to the evidence ***; there is no evidence introduced in this case supporting the said findings ***; the said findings of fact and conclusions of law are not supported by any evidence;" (2) the findings were neither signed nor filed within 20 days of the trial; (3) Judge Stevenson "was physically and mentally in such a weakened condition because of his illness that he could not...