Grayson v. Grayson

• Decision Date: 02 June 1960
• Citation: 352 P.2d 738,222 Or. 507
• Parties: Vera Mae GRAYSON, Respondent, v. Aubrey Lawrence GRAYSON, Appellant. STATE of Oregon ex rel. James C. HATFIELD, Respondent, v. Aubrey Lawrence GRAYSON, Appellant.
• Court: Oregon Supreme Court

Page 738

352 P.2d 738

222 Or. 507

Vera Mae GRAYSON, Respondent, v. Aubrey Lawrence GRAYSON, Appellant.

STATE of Oregon ex rel. James C. HATFIELD, Respondent, v. Aubrey Lawrence GRAYSON, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted May 11, 1960.

Decided June 2, 1960.

Wilber Henderson, Portland, argued the cause for appellant. With him on the brief were B. G. Skulason and Thomas R. Mahoney, Portland.

Richard H. Allen, Salem, argued the cause for respondent Hatfield. With him on the brief was Asa L. Lewelling, Salem.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and MILLARD, JJ.

MILLARD, Justice pro tem.

This is an appeal by defendant from an order of the circuit court of Marion County adjudging him in contempt of court on account of an alleged violation of an order issued pendente lite in a divorce proceeding brought by his wife which required him to furnish certain information to James C. Hatfield appointed in such proceeding as Receiver of certain property involved in the litigation consisting mostly of a dairy operation and stock in connection therewith.

As his only assignment of error, defendant contents that the court erred in adjudging the defendant in contempt for the reasons that the court did not have any power to appoint a receiver under the divorce laws of the state, that the general statute do not authorize receivership in such a case and that since the order appointing the receiver was therefore void, the order requiring defendant to furnish certain information to the receiver was also void and hence the judgment of contempt may be collaterally attacked and thus set aside.

Hence, the primary and novel question for determination here is whether or not a receiver may ever be appointed pendente lite in a divorce case. In the event the answer is in the affirmative, then it must be decided whether such appointment was within the power of the court in this case and lastly, whether the court exercised its power within proper limits. We say 'within proper limits' because the right of the court to authorize the receiver to deal with the property can be no greater than the extent of the power expressly granted or necessarily implied therefrom as will later appear.

We now turn to a consideration of whether or not the general statutes relating to the appointment of receivers authorize an appointment in such a case. ORS 31.010 defines a receiver as 'a person appointed by a court or judicial officer to take charge of property during the pendency of a civil action, suit or proceeding, or upon a judgment, decree or order therein, and to manage and dispose of it as the court or officer may direct.' (Emphasis supplied.) ORS 31.020(1) provides when the appointment may be made before judgment or decree as follows:

'Provisionally, before judgment or decree, on the application of either party, when his right to the property, which is the subject of the action, suit or proceeding, and which is in the possession of an adverse party, is probable, and the property or its rents or profits are in danger of being lost or materially injured or impaired.'

It will thus be seen that before appointment may be made under the general statute, the property involved must be (1) the subject of the action, suit or proceeding, (2) it must be in the possession of the adverse party, and (3) the right of the party seeking the receivership to the property must be probable. In this case defendant's wife was asking that all of the dairy stock and equipment be awarded to her. It does not follow, however, that such property was the subject of this suit. This court has held otherwise. In Houston v. Timmerman, 17 Or. 499, 505, 21 P. 1037, 1038, 4 L.R.A. 716, it is stated:

'Now, the divorce suit of the plaintiff was not brought specifically to recover the one-third of the real estate of her husband, as was decreed in the divorce proceeding. The land was not the subject-matter of the litigation, and the subject of the suit was not to recover title that belonged to the plaintiff. It was incidental and collateral to the divorce proceeding. The court has no jurisdiction to affect the title of the husband to his lands, or decree that one-third of them shall be set apart for her in her own right and title, independent of a decree for divorce. Nor has the plaintiff any title on which to base a suit to recover any portion of the same, except as it comes by force of the statute upon a decree for divorce.'

And again at page 506 of 17 Or., at page 1039 of 21 P.:

'It must be manifest, then, that the primary object of the suit is to affect the marriage relation,--its status; that it is the specific matter in controversy to be affected; and that it is only when the status is changed by a decree of divorce that the statute operates to divest title 'owned' by the defendants, and that it then becomes the duty of the court to enter a decree in accordance with its provisions.'

In Matlock v. Matlock, 87 Or. 307, 311, 170 P. 528, 529, this court again defined this term, subject of the suit in a divorce proceeding as follows:

'The Lane county circuit court acquired jurisdiction of the subject-matter of the suit by the filing of the complaint. Belknap v. Charlton, supra. Subject-matter in its broadest sense means the cause; the object; the thing in dispute. But in a legal sense the subject-matter of a suit when reference is made to matters of jurisdiction means the nature of the cause of suit and the relief sought: 7 R.C.L., p. 1051, § 86.

'A decree in a divorce case fixes the status of the parties, and, with reference to their being married or single, they can have but one status. The status is the thing about which the adjudication is made.'

See also Gooden v. Gooden, 180 Or. 309, 313, 176 P.2d 634.

The affidavit for the appointment of receiver fails to show the property was the subject of the suit within the definitions given, nor does the complaint. In a divorce case the subject of the suit is the marital relationship and the disposition of property is merely incidental to a dissolution thereof. For example, if the marriage is not dissolved, then there can be no property disposition. We hold, therefore, that the property was not the subject of the suit. Further than that, how could the court decide that the wife's right to the property was probable when the defendant had not yet answered the complaint and no showing was made in the appointment for receivership or complaint other than it was alleged that plaintiff and defendant owned the property, particularly in view of the now statutory authority giving the trial court the right to divide the property as seems just and equitable. See ORS 107.100(4). We, therefore, conclude that receivership is not authorized in a divorce case under the general statutes, apart from statutes relating to divorce.

This does not mean, however, that a receiver may not in such cases be appointed. In Muellhaupt v. Joseph A. Strowbridge Estate Co., 136 Or. 99, 103, 298 P. 186, 188, it was stated that 'In a proper case, the power to appoint a receiver is necessarily inherent in a court of equity. This power is not conferred by statute, but exists independently of it. Wm. H. Taylor Corp. v. Oregon L. & T. Co., 116 Or. 440, 241 P. 388.'

'it is a general rule that a court of law without equity jurisdiction and in the absence of statutory authorization has no power to appoint a receiver, but that a court of equity has such power, which is inherent in its chancery jurisdiction, independently of statute, where proper conditions and grounds exist for such relief.' 45 Am.Jur. Receivers, p. 24, § 18.

See also Annotation, 43 A.L.R. 242, 61 A.L.R. 1212, 91 A.L.R. 665.

The protection and preservation of property against imminent danger of loss is one of the proper grounds for appointment of a receiver. 45 Am.Jur., Receiver, p. 32, § 30. Even so, it is argued that a court in the exercise of its divorce jurisdiction is a court of limited powers and we agree.

'A divorce court is a court of limited jurisdiction, and it enjoys no power whatever except that expressly conferred upon it by statute. We have held many times that proceedings in a suit for divorce are purely statutory, and the powers which the court exercises are the mere creation of a statute. It is well established in this state that a circuit court, though a court of general jurisdiction, when exercising a special power conferred upon it by statute, and not according to the course of the common law, is a court of special and inferior jurisdiction, and is limited in its powers to those enumerated in the statute.' Zipper v. Zipper, 192 Or. 568, 574, 235 P.2d 866, 868. Quinn v. Hanks et al., 192 Or. 254, 233 P.2d 767, 772; Volz et ux. v. Abelsen, 190 Or. 319, 224 P.2d 213, 225 P.2d 768; Garner v. Garner, 182 Or. 549, 189 P.2d 397; Gooden v. Gooden, 180 Or. 309, 176 P.2d 634; State ex rel. Tolls v. Tolls, 160 Or. 317, 85 P.2d 366, 119 A.L.R. 1370; Northcut v. Lemery, 8 Or. 316. See also Burnett et al. v. Hatch, 200 Or. 291, 266 P.2d 414.

But, this does not mean that the divorce court may not act within the limit of the powers granted.

'When jurisdiction is, by the constitution or by statut...