Coker v. Richey

• Decision Date: 24 July 1923
• Citation: 217 P. 638,108 Or. 479
• Parties: COKER ET AL. v. RICHEY.
• Court: Oregon Supreme Court

217 P. 638

108 Or. 479

COKER ET AL. v. RICHEY.

Supreme Court of Oregon

July 24, 1923

In Bank.

Appeal from Circuit Court, Union County; Gilbert W. Phelps, Judge.

Suit by R. H. Coker and T. K. Bellamy, partners doing business under the firm name and style of the Eastern Oregon Music Company against G. M. Richey. A decree for defendant was reversed by the Supreme Court, and, from that part of a decree of the circuit court overruling defendant's objection to plaintiffs' cost bill, the defendant appeals. Affirmed.

R. H Coker and T. K. Bellamy commenced a suit against G. M. Richey for an injunction. A trial in the circuit court terminated in a decree dismissing the suit and allowing Richey to recover costs and disbursements from Coker and Bellamy. On June 23 1921, Richey filed a cost bill claiming $172.30. The circuit judge settled the cost bill and the objections made by plaintiffs to it by an order which was filed August 27, 1921 and allowed Richey $168.30.

The plaintiffs served and filed a notice of appeal on July 29 1921. An undertaking on appeal was duly filed, and subsequently, on August 26, 1921, the sureties, in answer to exceptions filed by Richey, justified; and the court approved the undertaking.

The undertaking on appeal, although sufficient for an appeal, did not, Richey says, operate as a stay of proceedings; and so on August 27, 1921, a writ of execution was at the request of Richey issued, and by it the sheriff was commanded to collect out of the property of the plaintiffs "the sum of $168.30 now due on said judgment." On August 29, 1921, the sheriff returned the writ showing that he had received from Coker and Bellamy $168.54, "or the full amount due on said execution."

The plaintiffs appeal from the decree rendered by the circuit court; and upon the appeal the decree of the circuit court was reversed and one rendered enjoining Richey from carrying on the piano or music business at La Grande, allowing Coker to recover costs and disbursements from Richey, but also providing that "no costs or disbursements will be allowed in favor of" Bellamy or Richey. Coker & Bellamy v. Richey, 104 Or. 14, 25, 202 P. 551, 204 P. 945, 947, 22 A. L. R. 744.

After a decree was rendered by the appellate court and a mandate issued to the circuit court, Coker filed in the circuit court a cost bill aggregating $33.70 for fees paid to officers and witnesses in the trial which had been had in the circuit court. This paper is referred to in the record as cost bill No. 1.

Coker and Bellamy together also filed a paper labeled "Statement of costs and disbursements claimed in the above-entitled cause by plaintiffs." This paper is by the parties denominated cost bill No. 2. It sufficiently appears from cost bill No. 2 that, at a time when the sheriff was armed with the writ of execution and had seized a valuable automobile owned by Coker and was threatening to take possession of Bellamy's music store, each of the plaintiffs paid to the sheriff $84.27, or a total of $168.54. In cost bill No. 2 Coker asks for $84.27, and Bellamy asks to be allowed to recover the same amount from Richey.

The parties stipulated in writing to submit to the circuit judge for the sixth judicial district "the issues of fact and law arising upon the filing of cost bills denominated Nos. 1 and 2 herein, by the plaintiffs and the objections of defendant thereto." The circuit judge allowed Coker $33.70 on cost bill No. 1 and $84.27 on cost bill No. 2, and also allowed Bellamy $84.27 on cost bill No. 2; and the clerk was ordered to insert the amounts "in the original judgment and decree upon the mandate of the Supreme Court, and that execution issue thereon."

Richey appealed "from that part of said judgment and decree whereby the said circuit court overruled the objections of defendant to the cost bill of plaintiffs, designated cost bill No. 2."

E. R. Ringo, of La Grande, for appellants.

C. R. Eberhard, of La Grande (Cochran & Eberhard, of La Grande, on the brief), for respondent.

HARRIS, J. (after stating the facts as above).

Although it may sometimes be difficult to determine whether a given payment is voluntary or involuntary, a comprehensive statement of the rule appears in Brumagim v. Tillinghast, 18 Cal. 265, 79 Am. Dec. 176:

"It may be said in general that there must be some actual or threatened exercise of power possessed, or supposed to be possessed, by the party exacting or receiving the payment over the person or property of the party making the payment, from which the latter has no other means of immediate relief than by advancing the money."

The sheriff was armed with a writ of execution, and by force of it he had seized property owned by Coker; and obviously payment by Coker was compulsory. It is likewise manifest that payment by Bellamy to prevent the carrying out of the threat of seizure was compulsory; and so say the authorities. Duniway v. Cellars-Murton Co., 92 Or. 113, 170 P. 298, 179 P. 561; Knox County Bank v. Doty, 9 Ohio St. 505, 75 Am. Dec. 479: ser v. Barron, 153 Cal. 474, 95 P. 879; First National Bank of Sturgis v. Watkins, 21 Mich. 483; Hiler v. Hiler, 35 Ohio St. 645; Chambliss v. Haas, 125 Iowa, 484, 101 N.W. 153, 68 L. R. A. 126, 3 Ann. Cas. 16.

The fact situation presented here is one where the circuit court decreed a dismissal of the suit and allowed to Richey his costs and disbursements. Coker and Bellamy were by the decree and processes of the circuit court compelled to pay such costs and disbursements. But upon appeal it was held that the decree which allowed Richey to recover his costs and disbursements was erroneous; and the final determination was that Coker was entitled to recover his costs and disbursements from Richey, and that, as between Bellamy and Richey, neither should recover from the other costs and disbursements.

The original decree of the circuit court conferred upon Richey the right to collect costs and disbursements, but that right was subject to being dissolved or rendered indissoluble upon appeal. The right to collect costs and disbursements was dissolved upon appeal, and hence after the decision of the appellate court Richey is found possessing moneys collected for him by force of process which had been based upon a decree that in the end was set aside; and because of this situation the law imposes upon Richey an obligation to make restitution of the moneys so acquired by him. McFadden v. Swinerton, 36 Or. 336, 354, 59 P. 816, 62 P. 12; Duniway v. Cellars-Morton Co., 92 Or. 113, 116, 170 P. 298, 179 P. 561; Metschan v. Grant County, 36 Or. 117, 120, 58 P. 80; Scholey v. Halsey, 72 N.Y. 578, 582; United States Bank v. Bank of Washington, 6 Pet. 8, 8 L. Ed. 299; Hinchman v. Ripinsky, 202 F. 625, 121 C. C. A. 35; Dodson v. Butler, 101 Ark. 416, 142 S.W. 503, 39 L. R. A. (N. S.) 1100, Ann. Cas. 1913E, 1001.

When a judgment is vacated after it has been by compulsion paid, the party who was so compelled to pay is entitled to have restored to him all that he lost under the erroneous judgment; and the party to whom such payment was made is obliged to make restoration. The right of restoration is of common-law origin, and, while many of the states have incorporated the right in a statute, it is frequently if not usually held that such statutes are merely cumulative. Northwestern Fuel Co. v. Brock, 139 U.S. 216, 11 S.Ct. 523, 35 L.Ed. 151; Harrigan v. Gilchrist, 121 Wis. 127, 441, 99 N.W. 909; Haebler v. Myers, 132 N.Y. 363, 30 N.E. 963, 15 L. R. A. 588, 28 Am. St. Rep. 589.

Costs and disbursements may properly become subject of restitution. Hinchman v. Ripinsky, 202 F. 625, 121 C. C. A. 35; Drescher Rotberg Co. v. Landeker, 82 Misc. 441, 143 N.Y.S. 1050. The right of restitution is unhesitatingly recognized in all jurisdictions where the rules of common law are given any application; but, though the existence of the right is unquestioned, the mode of exercising it is not always the same and varies with the circumstances. In jurisdictions where the common-law procedure is observed, if the amount paid appears on the record brought to the appellate court and is thus there made certain, that court may issue a writ of restitution; but where the amount to be restored does not appear in the record filed in the appellate court, a scire facias may be necessary to ascertain how much is to be restored. McFadden v. Swinerton, 36 Or. 336, 355, 59 P. 816, 62 P. 12; United States Bank v. Bank of Washington, 6 Pet. 8, 8 L. Ed. 299; Northwestern Fuel Co. v. Brock, 139 U.S. 216, 11 S.Ct. 523, 35 L.Ed. 151; Martin v. Woodruff, 2 Ind. 237; Haebler v. Myers, 132 N.Y. 363, 30 N.E. 963, 15 L. R. A. 588, 28 Am. St. Rep. 589; Flemings v. Riddick's Ex'r, 5 Grat. (Va.) 272, 50 Am. Dec. 119; Carroll v. Draughon, 173 Ala. 338, 56 So. 209.

Although we are not now concerned with whether or not a party who has been compelled to pay a judgment may, after such judgment has been vacated, elect to pursue as his remedy an independent action, it is not inappropriate to direct attention to the fact that such an election is frequently, if not generally, permitted, and the party is allowed to prosecute an action for money had and received. McFadden v. Swinerton, 36 Or. 336, 355, 59 P. 816, 62 P. 12; Lewis v. Hull, 39 Conn. 116; Field v. Anderson, 103 Ill. 403; Owings v. Owings, 10 Gill & J. (Md.) 267; Stevens v. Fitch, 11 Metc. (Mass.) 248; Haebler v. Myers, 132 N.Y. 363, 30 N.E. 963, 15 L. R. A. 588, 28 Am. St. Rep. 589; Clark v. Pinney, 6 Cow. (N. Y.) 297.

While it has been stated by a tribunal of high authority that there may be instances where an original action is the only available remedy, the case presented here is not one of them. Cummings v. Noyes, 10 Mass. 433.

Our present concern is to ascertain whether a party may...