Fischer v. Bayer

• Decision Date: 17 July 1923
• Citation: 216 P. 1028,108 Or. 311
• Parties: FISCHER v. BAYER ET AL.
• Court: Oregon Supreme Court

216 P. 1028

108 Or. 311

FISCHER v. BAYER ET AL.

Supreme Court of Oregon

July 17, 1923

In banc.

Appeal from Circuit Court, Wasco County; Fred W. Wilson, Judge.

On plaintiff's motion to recall and amend the mandate. Motion granted.

For principal opinion, see 210 P. 452. See, also, 211 P. 162.

Burnett J., dissenting.

Harry G. Hoy, of Portland, and Paul W. Childers, of The Dalles, for the motion.

C. A Sheppard, of Portland, contra.

McCOURT J.

Plaintiff has petitioned this court to recall its mandate heretofore issued to the circuit court, and that, when returned, the same be amended by the inclusion therein of a provision that plaintiff recover judgment against the surety in the undertaking on appeal.

The action was instituted in the circuit court to recover the reasonable value of services and merchandise alleged to have been performed for, and furnished to, defendants, at their special instance and request, by plaintiff and his assignors.

Plaintiff recovered judgment against all of the defendants, wherein it was recited--

"* * * That the plaintiff have and recover of and from the defendants jointly and severally the full sum of," etc.

A joint appeal was prosecuted by all of the defendants from that judgment to this court. Defendants obtained a stay of proceedings pending the appeal, by furnishing an undertaking on appeal, providing for such stay.

The undertaking on appeal was executed by all of the defendants as principals, and the National Surety Company, a corporation, as surety, and, in conformity with the statute (section 551, Or. L.), provided that--

"Whereas, it is desired that execution be stayed pending this appeal:

"Now, therefore, in consideration of the premises and of such appeal, we, the undersigned, J. C. Bayer, as trustee, Joseph R. Keep, as trustee, Eastern Irrigation, Power & Lumber Company, a corporation, and Joseph R. Keep, as principals, and National Surety Company, a corporation, * * * as surety, do hereby jointly and severally undertake and promise that said J. C. Bayer, as trustee, Joseph R. Keep, as trustee, Eastern Irrigation, Power & Lumber Company, a corporation, and Joseph R. Keep, defendants and appellants herein, will pay the damages, costs, and disbursements which may be awarded against the said defendants and appellants on said appeal, and if said judgment appealed from as aforesaid, or any part thereof, be affirmed on said appeal that the said defendants and appellants will satisfy said judgment in so far as it shall be affirmed."

Upon the hearing on appeal, it was decided that the evidence introduced by plaintiff wholly failed to establish liability on the part of J. C. Bayer, trustee, or the Eastern Irrigation, Power & Lumber Company, for the claims sued upon, but that the evidence was sufficient to warrant the verdict and judgment against the defendant Keep. 210 P. 452.

The judgment of the circuit court was in terms reversed, but it was ordered that the cause be remanded to the circuit court with directions to enter a judgment upon the verdict against the defendant Keep alone, exonerating the surety on appeal, and with the further direction to enter a nonsuit as to the other defendants (opinion handed down January 16, 1923, not reported).

It is the mandate issued according to the above directions that plaintiff seeks to have recalled. In support of his motion to recall and amend the mandate, plaintiff calls attention to the fact that this court directed the circuit court to enter a judgment against Keep, identical in all respects with the judgment appealed from, and claims that such direction in effect constitutes an affirmance of the judgment from which the appeal was taken, as to defendant Keep, and thereby creates the condition provided by the undertaking on appeal, upon which this court is authorized and required to give judgment against the surety.

In opposition to plaintiff's motion, defendant Keep insists that the appeal having been taken from a judgment rendered against all the defendants upon pleadings setting up a joint, and not a joint and several, liability, an affirmance of the judgment in whole or in part as to the amount of recovery against all the defendants, is essential to create a breach of the undertaking on appeal. Accordingly it is claimed that the judgment which this court directed to be entered against Keep was a different judgment from that appealed from, and consequently the undertaking on appeal was not breached.

The applicable provisions of the statute (Olson's Compilation), relating to the power of the Supreme Court in cases brought to it upon appeal, and the manner in which its decision shall be given and enforced, are as follows:

Sec. 557. "Upon an appeal, the appellate court may affirm, reverse, or modify the judgment or decree appealed from * * * as to any or all of the parties joining in the appeal, * * * and may, if necessary and proper, order a new trial."

Sec. 559. "The decision of the appellate court shall be given and enforced as provided in this section:

"1. Upon an appeal to the Supreme Court, its decisions shall be entered in the journal, and the cause remitted by mandate to the court below for further proceedings as therein directed. * * *

"2. If a new trial is not ordered, upon the receipt of the mandate by such clerk, a judgment or decree shall be entered in the journal and docketed in pursuance of the direction of the appellate court, in like manner and with like effect as if the same was given in the court below. * * *

"4. If judgment or decree be given against the appellant, it shall be entered against his sureties also, in like manner and with like effect, according to the nature and extent of their undertaking."

Where the Supreme Court, pursuant to the foregoing statutory authority, by its mandate directs specifically what judgment shall be entered by the lower court, that judgment when entered is in effect the judgment of the Supreme Court. Apex Transportation Co. v. Garbade, 32 Or. 582, 52 P. 573, 54 P. 367, 382, 62 L. R. A. 513; Bertin & Lepori v. Mattison, 81 Or. 482, 484, 159 P. 1167.

It was the rule at common law, in an action brought against two or more defendants on an alleged joint demand, that judgment must be given against all of the defendants, or none, but that rule has been changed by our statutes. In this jurisdiction, in an action brought against two or more defendants upon a joint contract, judgment may be given and rendered against those liable, whether their liability be joint or several, and the other defendants who are not liable may be dismissed. Or. L. §§ 61, 180, 181; Tillamook Dairy Ass'n v. Schermerhorn, 31 Or. 308, 51 P. 438; Hayden v. Pearce, 33 Or. 89, 52 P. 1049: Stivers v. Byrkett, 56 Or. 565, 572, 108 P. 1014, 109 P. 386, 387; Bertin & Lepori v. Mattison, 80 Or. 354, 357, 157 P. 153, 5 A. L. R. 590; Hewey v. Andrews, 82 Or. 448, 455, 159 P. 1149, 161 P. 108.

In Dairy Ass'n v. Schermerhorn, supra, Mr. Justice Wolverton, after an examination of the statutes and painstaking review of the authorities, including the earlier Oregon cases, stated the result as follows:

"If A., B. and C. are sued upon a joint contract or obligation, and it should turn out that C. was not bound, under the rule judgment could go against A. and B., while the complaint would be dismissed as to C., to the same effect as if the action had been instituted against all upon a several or joint and several contract, and it was shown that C. was not liable with the others. Nor could it make any difference that several persons were sued as jointly bound, and it should appear that one only was obligated. Judgment could be had as to him, and the complaint dismissed as to the others."

In Bertin & Lepori v. Mattison, 80 Or. 354. 358, 157 P. 153, 154, Mr. Justice Burnett had occasion to re-examine the question, and after setting forth in his opinion the sections of the statute above cited, the learned justice said:

"These enactments superseded the commonlaw rule that in an action on an alleged joint contract, recovery must be had against all the defendants or none, so that in such litigation the plaintiff may now recover from those defendants against whom he is able to establish his case, although he is compelled to loose his hold upon the others from whom he seeks to recover [citing earlier Oregon cases]. In Stivers v. Byrkett, 56 Or. 565, 572 (108 P. 1014, 109 P. 386, 387), Mr. Justice Eakin, reviewing the authorities, says: 'It is not necessary to review or cite these cases here, but we find that the great weight of authority and the better reasoning is that the judgment against joint or joint and several debtors, if void as to one, is not necessarily void as to those judgment debtors who were within the jurisdiction of the court'--citing authorities.

"The opinion speaks also of some precedents holding that such a determination is merely erroneous, and would be reversed on appeal as to all the defendants, and others that it would be reversed only as to the party over whom the court had no jurisdiction. But the statute sets the matter at rest, so that by legislative authority a plaintiff may recover judgment against those whom he has shown to be liable, while others he sought to charge may escape."

The circuit court then in the first instance might have given judgment against Keep only, and that such judgment should have been given against Keep and not against the other defendants, is the decision expressed in the opinion of this court. The rights and remedies of a judgment creditor for enforcing his judgment for the payment of money, where all the defendants have been served with summons, are in nowise dependent upon the joint or joint and several character of the claim sued upon. In either case the...