Duniway v. Cellars-Murton Co.

• Decision Date: 29 January 1918
• Citation: Duniway v. Cellars-Murton Co., 92 Or. 113, 170 P. 298 (Or. 1918)
• Parties: DUNIWAY v. CELLARS-MURTON CO. [*]
• Court: Oregon Supreme Court

170 P. 298

92 Or. 113

DUNIWAY v. CELLARS-MURTON CO. ^[*]

Supreme Court of Oregon

January 29, 1918

Appeal from Circuit Court, Multnomah County; E. V. Littlefield Judge.

Action by Ralph R. Duniway against the Cellars-Murton Company, a corporation. Judgment for defendant, and plaintiff appeals and defendant moves to dismiss the appeal. Motion denied.

This is a motion to dismiss an appeal. The facts are these: Certain property of the appellant valued at $750 was included in a sewer assessment made by the city of Portland; said assessment amounting to $74.07. In January, 1915, said assessment being unpaid and delinquent, the city treasurer in compliance with the charter and ordinances of the city of Portland, sold the property to respondent for the sum of $84.60, and issued a certificate of sale of said property. Thereupon appellant, claiming that the assessment and sale were invalid, brought a suit to quiet his title, which being decided adversely, he appealed to this court, giving the usual bond for costs and disbursements.

The court below decided, among other matters, that the respondent had a valid claim upon and interest in said property by reason of said treasurer's sale, and that if no redemption should be made therefrom within three years from the date of the certificate of sale, the defendant would be entitled to receive a deed to said property in accordance with the charter and improvement code of the city of Portland. While the appeal was pending here the appellant foreseeing that the three years allowed for redemption might elapse before the appeal could be heard, paid to the auditor of the city of Portland, under protest, the amount of the assessment, costs, and penalties, and in writing notified respondent that he in no way waived his appeal, and that he intended to prosecute the same, and if the decree of the circuit court should be reversed he would expect to recover the money so paid. Based upon this payment the respondent moves to dismiss the appeal upon the ground that by such payment the appellant has recognized and complied with the decree, and can have no further interest in the prosecution of the appeal.

Ralph R. Duniway and James R. Bain, both of Portland, for appellant. Geo. S. Shepherd and Geo. B. Cellars, both of Portland, for respondent.

McBRIDE C.J. (after stating the facts as above).

The redemption under the circumstances under which it was made was not voluntary, and, as shown by the protest accompanying it, was not made with any intent to waive appellant's...