Gow v. Multnomah Hotel

• Decision Date: 07 March 1951
• Citation: 228 P.2d 791,191 Or. 45
• Parties: GOW v. MULTNOMAH HOTEL, Inc., et al.
• Court: Oregon Supreme Court

Page 791

228 P.2d 791

191 Or. 45

GOW v. MULTNOMAH HOTEL, Inc., et al.

Supreme Court of Oregon, En Banc.

March 7, 1951.

James K. Buell, of Portland, Harold A. Seering, of Seattle, Wash., and Griffith, Peck, Phillips & Coughlin, of Portland, for appellant, for the motion.

James Arthur Powers, Veazie, Powers & Veazie and Claude M. Johns, Jr., all of Portland, for the respondents, contra.

BRAND, Chief Justice.

The plaintiff has filed a motion for the recall of the mandate heretofore issued by this court in the above-entitled cause and for the issuance of an amended mandate directing the trial court to enter judgment in favor of the plaintiff on the verdict nunc pro tunc as of 23 September 1948 with legal interest thereon until paid.

This was an action for damages for negligent tort. At the close of the testimony the defendants moved for directed verdict. Under the authority of O.C.L.A. § 6-707 as amended by Oregon Laws 1945, chapter 149, the trial court submitted the case to the jury, but with leave to the defendants to move for judgment notwithstanding the verdict if the jury should return a verdict in favor of the plaintiff. On 23 September 1948 the jury returned a verdict for the plaintiff in the sum of $7,175. On 24 September 1948 the defendants filed their motion for judgment n. o. v. and on 18 October 1948 the court entered judgment in favor of the defendants, notwithstanding the verdict of the jury. The statute, under the provisions of which the court acted, provides in part as follows: '* * * when a motion for a directed verdict which should have been granted has been refused and a verdict is rendered against the applicant the court may, on motion, render a judgment notwithstanding the verdict, or set aside any judgment which may have been entered and render another the judgment, as the case may require. In any case where, in the opinion of the court, a motion for a directed verdict ought to be granted, it may nevertheless, at the request of the adverse party, submit the case to the jury with leave to the moving party to move for judgment in his favor if the verdict is otherwise than as would have been directed.' Oregon Laws, 1945, ch. 149.

In the instant case the judgment n. o. v. for defendant was the first and only one entered in the case, no judgment on the verdict for the plaintiff having ever been made or entered.

Upon appeal to this court, we held that the trial court erred in granting judgment for the defendants and remanded the cause to the circuit court with directions to enter judgment for the plaintiff upon the verdict. The case was decided by this court on 28 November 1950. On 8 February 1951 the plaintiff filed its petition to recall mandate as above stated. The mandate heretofore issued was, on 21 February 1951, recalled by order of this court. The court had jurisdiction to recall the mandate. Rodda v. Rodda, 185 Or. 140, 209, 200 P.2d 616, 202 P.2d 638.

Now, having jurisdiction of the cause, we will consider the question presented. The plaintiff contends that he is entitled to a judgment nunc pro tunc as of 23 September 1948, for the amount fixed in the verdict, with interest thereon from that date, and that under the mandate heretofore issued, interest would not commence to run until judgment was entered in the circuit court, pursuant to the mandate issued in accordance with our opinion of 28 November 1950. The defendant contends that tort claims do not bear interest until reduced to judgment and that there was no judgment for plaintiff and could be none until one was entered in the circuit court pursuant to the mandate of this court, which was some two years after the return of the verdict. The statute provides:

'The rate of interest in this state shall be six per centum per annum and no more, and shall be payable in the following cases, to wit:

'* * *

'On judgments and decrees for the payment of money from the date of the entry thereof unless some other date is specified in said judgment or decree.' O.C.L.A. § 66-101.

The plaintiff relies upon the statute which provides in part as follows: '* * * If the trial be by jury, judgment shall be given by the court in conformity with the verdict and so entered by the clerk within the day on which the verdict is returned.' O.C.L.A. § 6-706.

The provision is only directory. Fuller v. Blanc, 160 Or. 50, 77 P.2d 440, 83 P.2d 434. It is true that the statute provides that judgments shall be entered by the clerk, but: 'In the entry of all judgments, except judgments by default for want of an answer, the clerk shall be subject to the direction of the court.' O.C.L.A. § 6-701.

And, as provided in O.C.L.A. § 6-706, supra, judgment is to be 'given by the court' and 'entered by the clerk'. It need scarcely be said that the clerk has no power to enter judgment on a verdict for the plaintiff, when, as here, the court has indicated an intention to give judgment for the defendants and has thereafter entered such a judgment n. o. v.

The plaintiff's chief reliance is on Compton v. Hammond Lumber Co., 154 Or. 650, 61 P.2d 1257. In that case judgment for the plaintiff was entered by the trial court upon the first cause of action, for $700 damages. This court reversed the judgment and remanded the case for a new trial. Compton v. Hammond Lumber Co., 153 Or. 546, 55 P.2d 21. On petition for rehearing the judgment awarding a new trial on the first cause of action was reversed and it was held that 'a judgment will be rendered in favor of plaintiff and against the defendant in the sum of $700 on the first cause of action * * *.' 153 Or. 546, 564, 58 P.2d 235, 236. The mandate merely directed the trial court to enter judgment for the amount of the verdict. The plaintiff Compton, as in the case at bar, moved for a correction of the mandate so as to provide for interest on the amount of the verdict from the date of the judgment thereon, which had been entered by the trial court. The motion was allowed. The obvious distinction between the two cases, is, that in the Compton case, interest was requested from the date of the judgment on the verdict, whereas here, interest is requested on the amount of the verdict for which the trial court had never entered judgment. In the Compton case, the court cited O.C.L.A. § 66-101, supra, and very properly corrected the mandate to allow the plaintiff interest on the judgment from the date of its original entry in the circuit court. In so doing, the court did not allow any interest for any period preceding the entry of a judgment and it awarded nothing more than would have been allowed under the interest statute if the original judgment had never been appealed. In so doing, this court did no violence to the rule that no interest can be allowed on an unliquidated claim for damages until it is reduced to judgment. In the Compton case there was a second cause for action for unliquidated damages on which the jury had awarded $500 to the plaintiff. On the petition for rehearing, this court found that there was an error in the computation of time and that the 'testimony supports the verdict and judgment for maintenance in the sum of $300, and no more'. The judgment was modified accordingly. On the motion to correct the mandate in the Compton case, this court significantly referred to Article VII, Section 3 of the Oregon constitution, and held that under that provision this court could determine what should be entered in the court below, but the court said: 'The amount which was thereby awarded by this court on the second cause of action was for unliquidated damages and was not determined until the decision of this court was rendered on the petition for rehearing. Therefore, interest on the $300 awarded on the second cause of action should be allowed only from June 2, 1936'--the date of the decision on the petition for rehearing, when, for the first time, the money 'became due'. See 154 Or. at page 652, 61 P.2d at page 1257, 1258. We find nothing in the decision of Compton v. Hammond Lumber Company on the motion for modification of the mandate which would authorize the entry of a judgment nunc pro tunc in the case at bar.

Koontz v. Weide, 111 Kan. 709, 208 P. 651, is cited by the plaintiff. The case is not in point. The court pointed out that it was not shown whether or not the judgment was announced when the verdict was rendered. The Kansas court held that it was the duty of the clerk to enter judgment on the verdict on the day when rendered and that interest was properly allowed from the date of the verdict. In the case at bar, it was the duly of the clerk not to enter any judgment except the one for the defendant under the orders of the trial court. In Re Potter's Estate, 154 Or. 167, 59 P.2d 253, the situation differed materially from that in the case at bar. Sola M. Potter died testate, leaving to her husband certain real property in lieu of curtesy and homestead rights. Thereafter, and in the probate proceedings, the husband renounced the provisions of the will and prayed for an order setting apart to him certain real and personal property as a homestead and as exempt property. The issue was tried, but before it was decided, the husband died. After the husband's death the trial court made the order and caused it to be entered as of the day the cause was submitted prior to the death. This court held that the nunc pro tunc order was within the inherent power of the court and was proper, although no order had been made during the lifetime of the husband. We think this case involved a nunc pro tunc order only in form. The actual adjudication was, that, as of a date prior to the husband's death, he had taken steps which entitled him to the property as a homestead and that when he died, his right passed to his heirs or representatives. The case is not authority for the contention of the plaintiff in the case at...