Hadley v. Hadley

• Decision Date: 23 February 1916
• Citation: 155 P. 195,79 Or. 573
• Parties: HADLEY v. HADLEY ET AL.
• Court: Oregon Supreme Court

155 P. 195

79 Or. 573

HADLEY v. HADLEY ET AL.

Supreme Court of Oregon

February 23, 1916

Department 1.

Appeal from Circuit Court, Tillamook County; Webster Holmes and H H. Belt, Judges.

Suit by Otelia Hadley against C. E. Hadley and others. From a decree dismissing the suit, plaintiff appeals. Affirmed.

Oak Nolan, of Portland (B. J. Howland, of Portland, on the brief), for appellant. Ralph R. Duniway, of Portland, and S. S. Johnson, of Tillamook, for respondents. Geo. G Bingham, of Salem, for administrator.

MOORE C.J.

This is an appeal by the plaintiff, Otelia Hadley, from a decree dismissing her suit. On a former appeal herein the plaintiff as the widow of C. B. Hadley, sought, as against the other heirs of the deceased, to have it decreed that for several years prior to and at the time of her husband's death he had been and was a partner with his son, the defendant C. E Hadley, who was in possession of firm assets of the value of $255,000, of which the administrator, the defendant C. W. Talmage, refused to make an inventory, and that she had a dower estate in the partnership realty and owned a moiety of the personalty thereof. The answer of the defendant C. E. Hadley denied the partnership, and for a separate defense alleged he was the owner of all the property described in the complaint; after the cause was at issue, but before it was tried, that defendant paid the plaintiff $7,000 for all her interests in the property, and she executed to him a deed thereof. The suit not having been dismissed pursuant to such settlement, a supplemental answer was filed, setting up the alleged compromise and praying for a dismissal of the suit. A reply controverted the averments of new matter in the supplementary answer, and alleged that the settlement relied upon had been secured by fraud. The prayer of the reply was that the alleged compromise might be set aside and the plaintiff allowed to retain the sum of money which she had received as an equitable advancement on account of what might be found to be due her upon the final settlement of the estate. Testimony in support of the revised issues was received, and, the cause having been submitted, the suit was dismissed, whereupon the plaintiff appealed and the decree was reversed. Hadley v. Hadley, 73 Or. 179, 144 P. 80. The mandate having been sent down, the defendants served upon plaintiff's counsel a notice that on December 28, 1914, upon the convening of the trial court, it would be asked to make an order, requiring the plaintiff forthwith to repay the defendant C. E. Hadley the sum of money which she had thus received from him, before she would be permitted further to prosecute the cause, and in default of such payment, that the suit be dismissed. At the time designated in the notice, the plaintiff's counsel filed objections to the right of the trial judge, Hon. Webster Holmes, to make any order in the cause, except to direct the mandate to be entered, by reason of his alleged interest in the subject-matter of the suit. The affidavit of such counsel, in support of the objections, is to the effect that, immediately prior to his appointment to the bench, the judge had stated to the affiant that a compromise of the issues involved in this suit could be concluded, and that if a settlement thereof was made he should expect, as his fee, a part of the consideration to be paid. These objections were overruled, the mandate was recorded in the journal, and, the plaintiff having refused to comply with the order of the court to repay the sum of $7,000, the suit was dismissed. Thereupon plaintiff's counsel moved for leave to file a supplemental complaint, which application was denied. Thereafter he applied to Hon. H. H. Belt, the successor of Judge Holmes, to vacate the order of the latter dismissing the suit. In order to controvert the sworn statement of the plaintiff's counsel, as to the alleged disqualification of the former trial judge, the defendant C. E. Hadley filed a counter affidavit, stating, in substance, that Judge Holmes had never been retained by the defendants, nor had either of them ever consulted with him in any matters. Based thereon, the motion was denied, and the plaintiff seeks to review the action of the court dismissing the suit.

On the former appeal, Mr. Justice Eakin, referring to the plaintiff, says:

"When she filed her reply to the supplemental answer, she should have proved the fraud and offered to put the defendant in statu quo by tendering back the $7,000. The question of fraud was not tried out or passed upon by the circuit court, and there was no tender back of the $7,000 as a condition of her right to

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