Ehrman v. Astoria & P. Ry. Co.

• Decision Date: 26 November 1894
• Citation: 26 Or. 377,38 P. 306
• Court: Oregon Supreme Court
• Parties: EHRMAN v. ASTORIA & P. RY. CO. et al.

38 P. 306

26 Or. 377

EHRMAN v. ASTORIA & P. RY. CO. et al.

Supreme Court of Oregon

November 26, 1894

Appeal from circuit court, Clatsop county; Thomas A. McBride, Judge.

Suit by Edward Ehrman against the Astoria & Portland Railway Company and others to foreclose a lien. Judgment for defendants, and plaintiff appeals. Appeal dismissed.

W McCamant and H.M. Cake, for appellant.

C.W Fulton, for respondents.

MOORE J.

This is a suit to foreclose a lien, brought here on appeal by plaintiff after attaching the property in an action at law. Defendants claim that the seizure by attachment is a waiver of the appeal, and move to dismiss it. The record shows that Warren W. Corey, Charles J. Corey, Amos B. Corey Warren H. Wattis, and Edmond D. Wattis, copartners doing business as general railroad contractors, under the firm name of Corey Bros. & Co., having filed their notice of lien upon the property of the defendant the Astoria & Portland Railway Company to secure the payment of the cost of constructing a part of its line of railroad from Astoria to Portland, assigned their claim and lien to the plaintiff, who commenced this suit in the circuit court of Clatsop county for its foreclosure; and at the trial thereof, on September 20, 1893, a decree was rendered dismissing the suit, from which the plaintiff, on March 19, 1894, appealed, and the transcript of said cause was on October 2d filed in this court. It also appears from affidavits filed herein: That the plaintiff, immediately after, and on the same day, said decree was rendered, commenced an action at law in said circuit court for the same demand set forth in his complaint in this suit, and filed his affidavit for an attachment, in which he, inter alia, says "that said contract [referring to his cause of action] was made in this state and that the payment of the same has not been secured by any mortgage, lien, or pledge upon real or personal property." And at the same time he also filed an undertaking, and caused a writ of attachment to be issued and levied upon the same property which he is seeking to subject to the satisfaction of his lien in this suit. That a summons in said action was served upon the defendants, who moved the court, upon a special appearance by them for that purpose, to set aside the service thereof, but, no further proceedings having been taken, the action is still pending in said court. That the facts which are made to appear by said affidavits and the exhibits forming a part thereof, are not denied by the plaintiff. The defendants' counsel contends that evidence dehors the record is admissible in this court when it affects proceedings before it on appeal, and that from such evidence in this case it is apparent that the plaintiff has waived his right of appeal. While plaintiff's counsel contend that, even if such evidence be admissible, it fails to show such waiver; that the issuing of an attachment, and its levy upon the property of a debtor to further secure the debt, does not destroy the lien given by statute for labor performed or...