Cottrell v. Prier

Decision Date16 May 1951
Citation191 Or. 571,231 P.2d 788
PartiesCOTTRELL et ux. v. PRIER et al.
CourtOregon Supreme Court

George E. Birnie, of Portland, for the motion.

Donald H. Joyce, of Portland, contra.

PER CURIAM.

This is a motion to dismiss an appeal. One ground of the motion, and the only one that needs to be considered, is that appellants have waived their right of appeal by accepting the benefits of the decree.

The suit is one in which the respondents, as vendees under a contract for the sale of realty, together with some personal property, obtained a decree of specific performance against the appellants. The decree, which was entered December 8, 1950, ordered the appellants to execute and deliver to the respondents their warranty deed conveying title to the real property in question and also to execute and deliver certain other instruments including a bill of sale to personal property agreed to be sold as part of the transaction. Simultaneously with the delivery of these instruments it was ordered that the respondents pay to the appellants 'the balance of the contract price, to wit, $15,000.00, as increased or reduced by adjustments for taxes and insurance premiums as of September 28, 1947.' The decree further provided that the respondents recover from the appellants the sum of $4,400.00 as damages for loss of use of the property, such sum to be deducted from the balance of the purchase price.

On December 28, 1950, appellants delivered to respondents the deed of conveyance and other instruments, as ordered in the decree, and received payment of the balance of the purchase price less the damages awarded by the court. On February 5, 1951, appellants served notice of appeal from the decree on the respondents.

The rule in this state is that, when a judgment or decree is rendered against a party, his payment of the sum awarded will not preclude him from maintaining an appeal unless it satisfactorily appears that the payment was voluntary, not coerced, and was made with the view of settlement. Brown v. Harris and Gregory, 187 Or. 658, 660, 213 P.2d 176; Fritz v. Fritz, 179 Or. 612, 617, 174 P.2d 169, and Oregon cases there cited. The reason underlying this rule is that unless the undertaking on appeal stipulates for the payment of the judgment if affirmed, the respondent, notwithstanding the appeal, could enforce it, and the payment is regarded as simply another mode of effecting the purpose of such undertaking. Staiger v. Holman, 144 Or. 67, 69, 6 P.2d 43, 18 P.2d 591, 23 P.2d 917.

In Coker & Bellamy v. Richey, 108 Or. 479, 482, 217 P. 638, 639, this court approved the following 'comprehensive statement' from Brumagim v. Tillinghast, 18 Cal. 265, 79 Am.Dec. 176, of the rule for determining whether a given payment is voluntary or involuntary: '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.'

Our statute relating to the undertaking on appeal and stay of proceedings provides in part: 'When the decree appealed from requires the execution of a conveyance or other instrument, execution of the decree is not stayed by the appeal, unless the instrument is executed and deposited with the clerk within the time allowed to file the undertaking, to abide the decree of the appellate court.' § 10-804(4), O.C.L.A.

Instead of following the statutory procedure which would have stayed enforcement of the decree, appellants elected to...

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15 cases
  • Ramex, Inc. v. Northwest Basic Industries
    • United States
    • Oregon Court of Appeals
    • August 15, 2001
    ...The Supreme Court has long recognized that voluntarily paying a judgment does not preclude a party from appealing from that judgment. Cottrell, et ux. v. Prier, et ux., 191 Or. 571, 573, 231 P.2d 788 (1951); Staiger v. Holman, 144 Or. 67, 69, 6 P.2d 43, 18 P.2d 591, 23 P.2d 917 (1933); Duni......
  • Greenough v. Prairie Dog Ranch, Inc.
    • United States
    • Wyoming Supreme Court
    • February 10, 1975
    ...Commerce was substituted as appellee herein.3 For recognition of this rule and application in varied circumstances see Cottrell v. Prier, 191 Or. 571, 231 P.2d 788, 789; Lucas v. First Nat. Bank of Pawnee, 171 Okl. 606, 43 P.2d 752, 753; Webb v. Crane Co., 52 Ariz. 299, 80 P.2d 698, 708.4 L......
  • Bennington v. Inland Investments Co.
    • United States
    • Oregon Court of Appeals
    • April 1, 1998
    ...from it; therefore, his actions in accepting and enforcing the note were inconsistent with his appeal. In Cottrell et ux. v. Prier et ux., 191 Or. 571, 231 P.2d 788 (1951), the court ordered specific performance in a land contract case. The judgment required the appellants to execute and de......
  • Minter-Wilson Drilling Co., Inc. v. Richins
    • United States
    • Oregon Court of Appeals
    • February 9, 1983
    ...it satisfactorily appears that the payment was voluntary, not coerced, and made with a view of settlement. Cottrell et ux. v. Prier et ux., 191 Or. 571, 231 P.2d 788 (1951). Payment made to prevent a threatened execution sale is not a voluntary payment. Housley et ux. v. Linnton Plywood Ass......
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