Esselstyn v. Casteel

• Decision Date: 05 October 1955
• Parties: Beulah A. ESSELSTYN, Appellant, v. Mrs. Elbert B. CASTEEL and National Surety Corporation, a corporation, Respondents.
• Court: Oregon Supreme Court

Page 665

286 P.2d 665

205 Or. 344

Beulah A. ESSELSTYN, Appellant, v. Mrs. Elbert B. CASTEEL and National Surety Corporation, a

corporation, Respondents.

Supreme Court of Oregon.

Argued May 2, 1955.

Decided Aug. 3, 1955.

Opinion Modified Oct. 5, 1955.

See 288 P.2d 214.

Rehearing Denied Oct. 5, 1955.

See 288 P.2d 215.

This action was brought by Beulah A. Esselstyn to recover damages from Mrs. Elbert B. Casteel, formerly county clerk of Umatilla County, Oregon, and National Surety Corporation, the surety on her official bond, claimed to have been caused by the neglect of Mrs. Casteel in failing to docket an alleged judgment. The defendants filed a motion to strike material portions of the complaint. The motion was allowed, and the defendants then filed a demurrer to the complaint which was sustained. The plaintiff refused to plead further, and judgment was entered for the defendants from which the plaintiff has appealed. The principal question presented is whether the complaint states facts sufficient to constitute a cause of action against the defendants.

The complaint alleges that the defendant Mrs. Casteel was, on June 4, 1948, and, thereafter, until January 1, 1951, the county clerk of Umatilla County, Oregon; that prior to June 4, 1948, plaintiff, who was married to one Charlie L. Gray, brought a suit for divorce in the Circuit Court of the State of Oregon for Umatilla County against her husband; and that on June 4, 1948, the court entered a decree of divorce in such suit in favor of the plaintiff, and by such decree awarded judgment in favor of the plaintiff and against Charlie L. Gray, the defendant therein, in the sum of $8,000, payable in monthly installments of $150 each, the first payment to be made on or before June 10, 1948, and a like monthly payment on or before the tenth day of each succeeding month until the full sum of $8,000 should be paid to the plaintiff. A copy of the decree is attached to the complaint. The portion thereof material to the present controversy reads as follows:

'It Is Further Ordered, Adjudged And Decreed, that the property rights of the plaintiff and defendant, are determined according to the stipulations entered into by these parties and introduced in evidence which stipulation omitting the heading, is as follows, to-wit:

'Now, therefore, it is hereby stipulated and agreed:

'That the husband shall pay to the wife as property settlement the sum of eight thousand dollars, payable in monthly payments of $150.00 each, without interest and first payment to be made on or before June 10th, 1948 and a like monthly payment on or before the 10th day of each succeeding month, until the full sum of eight thousand dollars has been paid.

'It Is Further, stipulated and agreed that the wife is to have the following furniture and equipment now located in the home of the parties at Echo, Oregon: Namely: * * *

'It Is Further, stipulated and agreed that the wife is to have free rental of the beauty shop portion of the building at Echo, Oregon, that she is occupying as such until said full sum of Thirty-six hundred dollars has been paid to her, and the husband further agrees during said period to pay one half of the heating, electricity and water costs as used in said building, until the said sum of thirty-six hundred dollars has been paid. A 1940 Buick sedan is now in the name of wife, and is to be transferred to husband and to become property of husband.

'It Is Further, understood and agreed, that this is a full, and complete settlement of all property rights, existing between the parties hereto, and that all the rest and remainder of the property, whether real, personal or mixed, now standing in the name of either the husband or the wife, shall remain the sole and separate property of the husband or the wife, in whose name the property now stands, and neither of the parties hereto shall have any right, title, interest or estate, in or to the said property, standing in the name of the other, or any part thereof, except such as may arise by reason of this agreement.

'Beulah A. Gray

'First party (wife)

'Charlie L. Gray

'Second party (husband)

'dated and entered this 4th day of June, 1948.

'/s/ Homer I. Watts

'Circuit Judge'

The complaint continues by alleging that on June 4, 1948, Charlie L. Gray was the owner in fee simple, free and clear of all encumbrances, of the following described real property located in Umatilla County, Oregon, to wit: Lots Five (5), Six (6), Seven (7) and Eight (8), Block Seven (7), Brassfield's Addition to the Town, now city of Echo; that the defendant, Mrs. Elbert B. Casteel, as county clerk of Umatilla County, Oregon, failed and neglected to docket the said decree in the judgment docket of Umatilla County at the time it was entered or at any time thereafter; that on the 10th day of June, 1948, Charlie L. Gray mortgaged the real property above described to Frank Young and Cecil A. Young, who had no actual knowledge or notice of the judgment of the plaintiff hereinabove referred to; that the said mortgage was acknowledged on the 12th day of June, 1948, and recorded on the 17th day of June, 1948, in the mortgage records of Umatilla County, Oregon, and at that time became and ever since has been a first lien upon the real property above described. It is further alleged that between June 4, 1948, and November 1, 1950, Charlie L. Gray paid to plaintiff the sum of $3,990 on the described judgment for $8,000, and that there is now due and owing thereon the sum of $4,010 together with interest at the rate of six percent per annum from November 1, 1950; that Charlie L. Gray died on August 14, 1952, a resident and inhabitant of Umatilla County, Oregon; that at the time of his death his assets were insufficient to pay his debts and his estate was and now is insolvent; that there is now due, owing and unpaid upon the note secured by the mortgage above described, approximately $5,000; that the value of the property covered by said mortgage does not exceed the homestead exemption of Goldie Mae Gray, the widow of Charlie L. Gray, and the balance due on the mortgage; and that the value of said property other than the homestead exemption does not exceed the amount of plaintiff's unpaid judgment. It is further alleged that by reason of the neglect and delinquency of the defendant, Mrs. Elbert B. Casteel, in failing to docket the decree above described, plaintiff has been damaged in the amount of $4,010, together with interest thereon at the rate of six percent per annum from November 1, 1950; that on April 26, 1954, plaintiff made a written demand upon the defendants for the amount aforesaid, but payment has been refused, and that the sum of $1,500 is a reasonable amount to be awarded plaintiff as an attorney's fee. Judgment was demanded accordingly.

James C. Dezendorf, Portland, argued the cause for appellant. With him on the briefs were Koerner, Young, McColloch & Dezendorf and Joseph Larkin, Portland.

John F. Kilkenny, Pendleton, argued the cause for respondents. On the brief were Kilkenny & Fabre, Pendleton.

Before WARNER, C. J., and TOOZE, ROSSMAN and LUSK, JJ.

LUSK, Justice.

The principal question raised by the demurrer is whether the provision in the decree in the divorce suit for the payment by the defendant in that suit to the plaintiff of the sum of $8,000 in monthly installments of $150 each as a property settlement is a judgment.

In this state a judgment is defined as 'the final determination of the rights of the parties in an action'. ORS 18.010. The same section provides: 'The final determination of the rights of the parties to a suit is called a decree, and any intermediate determination is called an order.'

The following provisions of ORS state the duties of the clerk with reference to judgments and decrees and the effect of docketing a judgment:

18.030. 'All judgments shall be entered by the clerk in the journal, and shall specify clearly the amount to be recovered, the relief granted, or other determination of the action.'

The foregoing is made applicable to suits by 18.020.

18.320. 'Immediately after the entry of judgment in any action the clerk shall docket the same in the judgment docket.'

The foregoing is made applicable to suits by 18.310.

18.350. '(1) From the date of docketing an original or renewed judgment or the transcript thereof, as provided in ORS 18.320, such judgment shall be a lien upon all the real property of the defendant within the county or counties where the same is docketed, or which he may afterwards acquire therein, during the time prescribed in ORS 18.360.'

The corresponding sections of O.C.L.A. in effect at the time of the entry of the decree in the divorce suit were not different in meaning from the sections of ORS above set forth.

If, therefore, the provision of the decree in question constitutes a judgment, it is clear that the complaint states a violation of the clerk's statutory duty, as prescribed by ORS 18.320.

The parties are agreed that that portion of the decree is intended to be a settlement of property rights, rather than an award of alimony. Inasmuch as the decree expressly states that 'It is further ordered, adjudged and decreed, that the property rights of the plaintiff and defendant, are determined according to the stipulations entered into by these parties', we concur in this view of its meaning. The fact that the decree makes the sum of $8,000 awarded to the plaintiff payable in installments, does not affect this conclusion. Putnam v. Putnam, 104 Kan. 47, 177 P. 838; Seyfert v. Seyfert, 206 Wis. 503, 240 N.W. 150; Madden v. Madden, 5 Ohio N.P.,N.S., 593, 604, reversed on other grounds 11 Ohio Cir.Ct.R.,N.S., 238. In Prime v. Prime, 172 Or. 34, 42-43, 139 P.2d 550, 554, the court, by way of dictum, indicated that an executory agreement for future periodical payments, as a part of a division of property, when approved and incorporated in a decree, would be held invulnerable to modification...