In re Blagen's Estate

• Decision Date: 15 December 1931
• Citation: 6 P.2d 43,144 Or. 67
• Parties: In re BLAGEN'S ESTATE. v. HOLMAN, State Treasurer. STAIGER
• Court: Oregon Supreme Court

6 P.2d 43

144 Or. 67

In re BLAGEN'S ESTATE.

STAIGER v. HOLMAN, State Treasurer.

Supreme Court of Oregon

December 15, 1931

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Proceedings in the matter of the estate of Hannah Blagen, deceased, in which decree was entered sustaining objections of Rufus C Holman, State Treasurer, to final account of Florence Blagen Staiger, executrix of the estate, and denying her claim of exemption, from which decree the executrix appeals.

Motion to dismiss appeal denied.

The respondent moves to dismiss this appeal for the reason that the circuit court of the state of Oregon for Multnomah county, department of probate, on July 1, 1931, entered a decree sustaining the objections of the state treasurer to the final account in this estate and denying the claim of exemption asserted by the executrix, through her attorneys whereupon an order determining such inheritance tax was made and entered in accordance with such decree. The inheritance tax was computed at $14,861.67, and, on July 18, 1931, such sum was paid to the state treasurer and receipt therefor issued on July 21, 1931. Notice of appeal was filed on August 29, 1931.

The respondent submits that payment by the judgment debtor bars the right to appeal. The appellant contends that the executrix might have appealed this case without the necessity of posting a stay bond, in which event the payment of the tax specified by the order could have been enforced notwithstanding the appeal; that the payment of the tax as specified by the judgment order has the same force and effect as the posting of a stay bond on appeal; that the executrix was in no worse position after the payment of the tax decreed by the order than she would have been had the same been enforced by legal process.

Joseph, Haney & Veatch and R. C. Bradshaw, all of Portland, for appellant.

I. H Van Winkle, Atty. Gen., and David S. Husted, of Portland, for respondent.

BEAN, C.J. (after stating the facts as above).

When a judgment is rendered against a party, his payment of the sum awarded will not preclude him from maintaining an appeal unless it satisfactorily appears to the court that the payment was not coerced and was made with a view of settlement. Eilers Piano House v. Pick, 58 Or. 54, 113 P. 54. This ruling following the holding in Edwards v. Perkins, 7 Or. 149, where it was held that a party voluntarily paying a judgment rendered against him is not thereby precluded from prosecuting an appeal therefrom. The reason assigned for the determination there reached was based upon the fact that, unless the undertaking on appeal stipulated for the payment of the judgment, if affirmed, the respondent, notwithstanding the appeal, could enforce it, and the payment was simply another mode of affecting the purpose of such undertaking. Mr. Justice Boise, referring to the rights of the appellant, in rendering the decision, said: "We think he is in no worse position from having paid the judgment voluntarily than if he had settled the execution with costs."

In Duniway v. Cellars-Murton Co., 92 Or. 113, 170 P 298, 179 P. 561, which was an appeal from a sewer assessment upon certain property for the construction of a sewer, the assessment not being paid, and delinquent, the city treasurer sold the property to the respondent for the sum of $84.60 and issued a certificate of sale therefor. Thereupon the appellant, claiming that the assessment and sale were invalid, brought suit to quiet his title. Being decided adversely to him, he appealed to this court, giving the usual bond for costs and disbursements. While the appeal was pending here, the appellant, fearing that the time for redemption might elapse before the appeal could be heard, paid the auditor of the city of Portland, under protest, the amount of the assessment, costs, and penalties, and the respondent moved to dismiss the appeal. In an opinion by Mr. Chief Justice McBride, it was stated that the redemption under the circumstances under which it was made was not voluntary, and, as shown by the protest accompanying it, was not made with any intent to waive appellant's rights on appeal, citing Edwards v. Perkins, supra; Moores v. Moores, 36 Or. 261, 59 P. 327; Eilers Piano House v. Pick, supra, and cases from other states. Chief Justice McBride remarked: "This...