Davidson v. Richardson

• Decision Date: 22 October 1907
• Citation: Davidson v. Richardson, 50 Or. 323, 91 P. 1080 (Or. 1907)
• Parties: DAVIDSON v. RICHARDSON.
• Court: Oregon Supreme Court

91 P. 1080

50 Or. 323

DAVIDSON v. RICHARDSON.

Supreme Court of Oregon

October 22, 1907

Appeal from Circuit Court, Polk County; William Galloway, Judge.

On rehearing. Former opinion modified.

For former opinion, see 89 P. 742.

W.M. Kaiser, for appellant.

J.K Weatherford, for respondent.

EAKIN J.

In the original opinion we rested the case exclusively upon the fact that the Legislature has control over the liens of judgments and that, in this case, the effect of the enlargement of the dower estate was only a withdrawal of property from the lien of the judgment to the extent of the increase of the dower estate. It is insisted, however, that the effect of the amended statute increasing the dower estate is to deprive the defendant of his remedy by execution by withdrawing a portion of the debtor's property from liability, and that this impairs the obligation of his contract; and we must concede that this is the effect of the amendment.

The case of Watson v. N.Y. Cent. R. Co., 47 N.Y. 157 cited in the opinion, holds that the lien is subject to the control of the Legislature, but it was further suggested that, though the Legislature could authorize the appropriation of the land for public use free from the lien yet the compensation paid therefor was still subject to execution; that is, the Legislature did not put the debtor's property beyond the reach of his creditor. The right to the lien relates to the remedy, but the right of the creditors of a debtor to avail themselves of his property at all events for the satisfaction of his debts is not a question of remedy, but of right. The case of McCormick v. Alexander, 2 Ohio, 65, quoted in the opinion, and cases cited thereunder, only hold that the lien is subject to the control of the Legislature, but do not go to the extent of holding that the debtor's property may be exempted from existing debts. Edwards v. Kearzey, 96 U.S. 595, 24 L.Ed. 793, relates to the creation of a homestead exemption, which withdrew the property not only from the lien of judgments, but also from liability to execution, and there it is held to impair the obligation of the contract. This is also the effect of Gunn v. Barry, 15 Wall. (U.S.) 610, 622, 21 L.Ed. 212. The facts in the case of Patton v. Asheville, 109 N.C. 685, 14 S.E. 92, are parallel with those before us, so far as it affects this question, and it was held that the act of the Legislature enlarging the dower estate impaired the obligation of the contract. In that case there was no lien in favor of the creditor, but under the law at that time the property of a debtor was subject to the payment of his debts, and the statute enlarging the dower, having the effect to withdraw a portion of the debtor's property from levy and sale, was void as to such debts contracted prior to the statute, and we conclude, without reference to the power of the Legislature to modify or abolish the lien of a judgment, if the property of the debtor, or a material portion thereof, is withdrawn from the reach of pre-existing creditors, it thereby impairs the obligation of such contracts. That was the effect of the enlargement of the dower estate before us, and such statute cannot affect defendant's judgment; and the decision of this court heretofore rendered in this case as to the effect of this statute must be set aside.

It appears, however, that when the confession of judgment by Wm M. Davidson on November 9, 1892, was executed and entered by the clerk, no judgment was entered thereon, but it was entered upon the judgment docket upon that date, and on July 7, 1897, execution was issued thereon and sale of the lands in question was had thereunder on August 14, 1897. Afterwards, on December 5, 1898, by order of the said court, such judgment was entered nunc pro tunc, as of November 9, 1892, and plaintiff insists that such entry of judgment is not retrospective as against plaintiff's interests, and that she is entitled to dower under the statute of 1893. The office of a nunc pro tunc entry is to record some act of the court done at a former term which was not then carried into the record; and such entry is retrospective and has the same force and effect as if entered at the time when rendered, except as to third parties having intervening rights. Cleveland Leader Printing Co. v. Green, 52 Ohio St. 487, 40 N.E. 201, 49 Am.St.Rep. 725; McNamara v. N.Y., L.E. & W.R. Co., 56 N.J.Law, 56, 28 A. 313; Ferrell v. Hales, 119 N.C. 199, 25 S.E. 821. It was held in Doughty v. Meek et al., 105 Iowa, 16, 74 N.W. 744, 67 Am.St.Rep. 282, that such entry validates all prior proceedings, including the...