Electrical Products Corp. v. Ziegler Drug Stores, Inc.

• Decision Date: 18 May 1937
• Citation: 157 Or. 267,68 P.2d 135
• Parties: ELECTRICAL PRODUCTS CORPORATION v. ZIEGLER DRUG STORES, Inc. (WITTY, Garnishee).
• Court: Oregon Supreme Court

68 P.2d 135

157 Or. 267

ELECTRICAL PRODUCTS CORPORATION v. ZIEGLER DRUG STORES, Inc. (WITTY, Garnishee).

Supreme Court of Oregon

May 18, 1937

Appeal from Circuit Court, Multnomah County; Hall S. Lusk, Judge.

Action by Electrical Products Corporation against the Ziegler Drug Stores, Incorporated wherein Lee H. Witty was garnisheed. From a judgment allowing partial recovery against garnishee defendant, the plaintiff appeals and defendant moves to dismiss.

Motion dismissed.

Appeal from order striking out portion of complaint before final judgment is not permissible, proper procedure being appeal from judgment when the interlocutory order may be brought up.

Where order striking portions of complaint was not appealable plaintiff's request for judgment on the pleadings which evidenced no intention to relinquish right to appeal held not "waiver" of right to appeal from judgment "waiver" being a voluntary and intentional relinquishment or abandonment of a known, existing legal right.

Ralph B. Herzog, of Portland, for appellant.

Joseph Veatch & Bradshaw, of Portland, for respondent.

BEAN, Chief Justice.

This is a motion to dismiss the appeal. On April 29, 1929, plaintiff Electrical Products Corporation of Oregon, entered into a contract with Ziegler Drug Stores, Inc., a corporation, to install and lease to said Ziegler Drug Stores certain advertising signs known as "Claude Neon Sign" and to maintain and service said signs.

The facts are stated substantially as follows: The Ziegler Drug Stores operated fifteen stores in the city of Portland, and this contract applied to these various stores. The contract contained a provision to the effect that if there should be a default on the part of the Ziegler Drug Stores under the contract and the Ziegler Drug Stores should become guilty of a breach of the lease agreement, then the rights of the Ziegler Drug Stores should cease and terminate, and as liquidated damages there would be due the plaintiff a sum equal to 90 per cent. of all installments of rent for the remainder of the period specified in the lease agreement. The Ziegler Drug Stores defaulted and went out of business prior to the time that all the installments under the lease agreement were paid, and thereafter the plaintiff brought an action against the Ziegler Drug Stores upon the theory that there was due and payable to plaintiff from the Ziegler Drug Stores the liquidated damages, 90 per cent. of the remaining unpaid installments under the contract.

Upon the trial in the circuit court, judgment was entered against the Ziegler Drug Stores on plaintiff's theory of liquidated damages. An appeal from the judgment was taken to the Supreme Court, as reported in 141 Or. 117, 10 P.2d 910 15 P.2d 1078. The court declined to accept the plaintiff's theory that the provision of said contract was for liquidated damages, but that said provision was in the nature of a forfeiture and therefore the plaintiff could not recover under that theory of the case, and the case was reversed and remanded for a new trial. Upon retrial of the case the plaintiff adopted the theory of general damages, and it appeared from plaintiff's pleadings that it was asking judgment for the sum of $472, the accrued and unpaid installments under the lease contract for November and December of 1930, and January of 1931, and for a further sum as damages for the breach of the contract by the Ziegler Drug Stores. Judgment was entered in the cause for $472, accrued and unpaid monthly installments, and the sum of $8,838.82, as damages for breach of the contracts by the Ziegler Drug Stores, and for attorneys' fees, costs, and disbursements. On October 30, 1934, plaintiff filed in the circuit court certain second amended allegations against the garnishee herein named, and other garnishees.

Thereafter, and within time, Lee H. Witty, the garnishee, filed a motion against said allegations to strike therefrom all of the allegations with reference to any sums of money allowed in the judgment in the Ziegler Drug Stores Case, pertaining to damages and attorneys' fees.

The circuit court allowed respondent Witty's motion to strike the parts moved against from plaintiff's second amended allegations. This order was made June 22, 1936.

The garnishee states that no appeal has been made from this order and more than sixty days have elapsed since the entry thereof. Thereafter, on July 1, 1936, plaintiff moved the court for judgment in the sum of $9,043.22, and the further sum of $2,000, as attorneys' fees, and a further sum of $24 as costs and disbursements for the reason that said garnishee was given five days from June 22, 1936, within which to plead, and more than five days had elapsed and the garnishee had not pleaded against plaintiff's second amended allegations with the portions thereof stricken by order of the court. Thereafter, on August 18, 1936, pursuant to plaintiff's said motion for judgment on the pleadings, the court entered an order against the garnishee herein for the sum of $472.

The garnishee moves the court to dismiss plaintiff's appeal for the following reasons: (1) That the judgment appealed from is not an erroneous or void judgment. Said...