Day v. Holland

• Decision Date: 06 December 1887
• Citation: 15 Or. 464,15 P. 855
• Parties: DAY v. HOLLAND and others.
• Court: Oregon Supreme Court

15 P. 855

15 Or. 464

DAY v. HOLLAND and others.

Supreme Court of Oregon

December 6, 1887

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

A.L Frasier and F.V. Holman, for appellants.

H.T Bingham, A.B. Coleman, and Cornelius Taylor, for respondent.

STRAHAN J.

This is an action to recover damages for a malicious trespass on real property alleged to have been committed in said county of Multnomah on the sixth day of October, 1886.The actual damage alleged was $60, but, by reason of the alleged malice of the defendants and the aggravated circumstances of the trespass, the plaintiff claimed damages in the sum of $1,000.Upon a trial before a jury, she was awarded the sum of $600.From that judgment this appeal is taken.The cause was tried on the twenty-sixth day of February, 1887.

For the purpose of justifying their entry upon the premises in question, the defendants offered in evidence upon the trial a properly certified copy of the judgment roll in a suit theretofore finally determined in department No. 2 of the circuit court of Multnomah county, wherein Margaret Holland was plaintiff, and Ellen Day, James Day, Lizzie DayMary Day, and Frank Day were defendants.The final decree in said last-named suit was entered on the twenty-seventh day of September, 1886, the object of which was to quiet the title of the plaintiffs to the real property upon which the alleged trespass was committed.The court, by its decree, found for the plaintiff as to the particular parcel of land where the injury complained of in this case was committed, and decreed that "the said defendants, and each of them, and all persons claiming through, by, or under them, be, and they are hereby forever barred of any and all right, title, estate, or interest in or to the said real estate, or any portion thereof, and are hereby restrained and enjoined forever from claiming or asserting or exercising, or attempting to exercise, any right, title, or interest therein or thereto, or in any manner interfering with the title or possession of said plaintiff in and to the said property; and that the legal title and the right to the immediate and continued peaceable possession in and to the said property is hereby confirmed, ordered, and decreed," etc.It further appeared from the said judgment roll that an appeal had been taken from said decree by the defendants to this court, and that on such appeal the undertaking was given for an appeal only.It did not appear from said judgment roll that said cause had been remanded from this court to the court below.The judgment roll was excluded, to which ruling an exception was taken; and this is the only material question presented by this appeal.

It is claimed by the appellant that this decree was competent evidence for either one of two purposes: (1) That it constituted a full and complete justification for all of the alleged trespasses charged in the complaint; or (2) that it was competent evidence to be submitted to the jury tending to negative and disprove malice.The jurisdiction of this court is appellate and revisory only.It can exercise no original jurisdiction.Article 7, § 6, of the constitution , vests and limits its jurisdiction in these words: "The supreme court shall have jurisdiction only to revise the final decisions of the circuit courts. ***" This revisory jurisdiction is exercised by means of a statutory appeal.The same statute regulates the method of appeals in both actions at law and suits in equity.The only distinctions which it makes in the two classes of cases is that, if the appeal be from a decree, the appellant need not specify in the notice of appeal the grounds of error upon which he intends to rely, and, if the evidence has been taken in writing, the cause shall be tried anew upon the transcript and evidence accompanying it.If the evidence has not been taken in writing in the court below, an equity case is re-examined here only upon the exceptions which were taken in the court below.

The first question therefore is, what effect did the appeal have upon the decree in said cause?Was the decree in question vacated and broken up by the appeal, so that it ceased to be binding upon the parties, or was its enforcement stayed pending the appeal by force of section 539, Hill, Code, and what was the effect of such "stay," if it existed?In such a case as this, the statute has not declared the effect of an appeal during its pendency upon the decree; we are therefore compelled to examine the question on reason and authority outside of the state.

In Dutcher v. Culver,23 Minn. 415, it was held that, where the statute provides that a party may appeal, no certain inference can be drawn from the term "appeal" alone, as to its effect upon the proceedings below; and that, in determining what the effect was, the court might properly look at the general policy of the law of appeals as furnishing a valuable analogy, and to the practical consequences of giving to the appeal the effect to stay proceedings below, or the contrary effect.Applying this view to the case, the court was of the opinion that the appeal from the order of the probate court did not vacate or suspend the operation of the order.

The case of Railroad Co. v. Railroad Co.,71 N.Y. 430, involved, as I think, the precise question presented by this record.In that case, as here, the final decree enjoined the defendants from doing certain things.The parties enjoined appealed, and gave the undertaking to stay the judgment, and then claimed that their appeal, during its pendency, relieved them from the effects of the injunction.But the court held otherwise.The court said: "If the respondent here is right in its contention, pending an appeal from a judgment staying waste, which if committed will destroy the freehold, the appellant, in simply staying the plaintiff's proceedings on the judgment, may with impunity do the very act forbidden, and destroy the freehold.This would be to give the latter injunction, staying action by the one party upon the judgment, effect, as working a dissolution of the permanent and general injunction before granted, restraining the other party from doing any act affecting the subject of the litigation.The judgment, so far as it enjoined the defendant, needed no execution.It acted directly, without process, upon the defendant, and the stay only operated to prevent the collection of the costs awarded."

So in Nill v. Camparet,16 Ind. 107, it was held that the only effect of an appeal to a court of error, when perfected, is to stay execution upon the judgment from which it is taken.In all other respects, the judgment, until annulled or reversed, is binding upon the parties, as to every question directly decided.

So in Cain v. Williams,16 Nev. 426, it was decided that the pendency of an appeal when the appellate court has no other duty than to affirm, reverse, or modify the judgment appealed from, does not suspend the operation of the judgment; the judgment is good until set aside.

So, also, in Swing v. Townsend,24 Ohio St. 1, it was held that the appointment of a receiver, while the cause is in the common pleas, is not vacated or suspended by an appeal to the district court, and the powers and duties of the receiver will continue notwithstanding the appeal.These cases also are to the same effect: Lewis v. Railroad Co.,59 Mo. 495;Orleans v. Platt,99 U.S. 676;Burton v. Burton,28 Ind. 342;Insurance Co. v. De Wolf,33 Pa.St. 45;Loan & Trust Co. v. RailroadCo., 4 McCrary, 546;Allen v. Mayor, etc.,9 Ga. 286;Chase v. Jefferson, 1 Houst. 257;Suydam v. Hoyt's Adm'r,25 N.J.Law, 230;2 Daniell, Ch. § 1467, and note 3;Paine v. Insurance Co.,11 R.I. 411.

And this rule seems to be sustained by the weight of authority, and is elementary.Freem.Judgm. § 328;Wood, Pr.Ev. 735.

In reaching the conclusion indicated by these authorities, we have not overlooked the distinctions which existed prior to the enactment of the Code between the effect to be given to an appeal and the suing out of a writ of error.But such distinctions are swept away by the Code.The entire procedure is now governed by one statute, and no sufficient reason appears to us for making the distinction claimed by the respondent.This very case is a good illustration why such distinction should not be tolerated or recognized.In the original case of Holland v. Day, as has been shown, a final decree was entered in favor of the plaintiff, adjudging her to be the owner of the premises then in dispute, and perpetually enjoining the defendant from claiming the same, or in any manner interfering with the plaintiff's peaceable enjoyment of the same, from which decree the defendant appealed.After the entry of that decree the plaintiff, present defendant, undertook to enter under it, and was resisted, and for that alleged wrong this action is brought, in which the plaintiff is awarded $600 damages.Upon the appeal in said suit, this court affirmed the decree of the court below, so far as the particular premises in controversy in this action are concerned; so that it is apparent that this defendant is mulct in $600 damages and costs for an attempted entry on her own premises under a valid and unreversed decree of the circuit court of the Multnomah county.A construction which may produce such results is unsound, and cannot receive the sanction of this court.

Our attention has been called to the latter part of section 514 Hill, Code, which provides: "An action or suit is deemed to be pending from the commencement thereof until its final determination upon appeal, or until the expiration of the period allowed to take an appeal."But this section has no direct bearing upon the question involved here.To adopt the...