Henderson v. Henderson

• Citation: 37 Or. 141,61 P. 136
• Parties: HENDERSON v. HENDERSON.
• Decision Date: 28 May 1900
• Court: Supreme Court of Oregon

61 P. 136

37 Or. 141

HENDERSON v. HENDERSON.

Supreme Court of Oregon

May 28, 1900

Motion to modify decree. Denied.

For former opinion, see 60 P. 597.

Geo. E. Chamberlain, for the motion.

Raleigh Stott, opposed.

PER CURIAM.

This is a motion to modify the decree rendered in this court in the above-entitled cause, so that it may be entered against the surety on the undertaking for appeal, not only for the costs and damages, but as well for the sum of $1,800, the amount of alimony which has accrued against the defendant and appellant under the decree of the circuit court since the appeal was perfected.

The facts out of which the controversy arises are substantially as follows: The plaintiff recovered a decree of divorce against the defendant, January 3, 1894, and, as a part of the same decree, the defendant was directed to pay her $150 per month alimony. Subsequently the defendant moved for a modification of this decree, so as to relieve him from the payment of $75 per month of such alimony, which resulted in an order or decree dismissing the motion, and adjudging that the defendant pay the costs attending the same, from which defendant prosecutes his appeal to this court. In perfecting his appeal, defendant gave an undertaking, with Byron Z. Holmes as surety, to the effect that he would satisfy the decree appealed from so far as affirmed. Subsequent to the time when the appeal was perfected, there accrued against the defendant, and in favor of the plaintiff the sum of $1,800 alimony under the original decree entered when the divorce was granted; and the purpose of the motion now made is to have the decree of this court entered against the surety upon the appeal bond for this latter sum, as well as for the costs attending the motion for a modification of such original decree.

There was a stipulation filed in the court below about the time the appeal was perfected, which sets forth that "whereas the undertaking on appeal in said cause provides for a stay of proceedings as well as for an appeal; and whereas, the plaintiff intends, notwithstanding such appeal, to make and execute a counter bond as provided by section 540, Hill's Ann.Laws, in order that, notwithstanding said appeal, she may enforce the original decree for alimony in said cause: Now therefore, in consideration that the plaintiff will not execute and file any counter bond as provided by said section, it is stipulated and agreed by...