In re Goldsmith

• Decision Date: 01 October 1885
• Citation: 9 P. 565,12 Or. 414
• Parties: In re GOLDSMITH and others.
• Court: Oregon Supreme Court

9 P. 565

12 Or. 414

In re GOLDSMITH and others.

Supreme Court of Oregon

October, 1885

Rehearing. S.C. 7 P. 97.

Henry Ach, for petitioner.

Joseph Simon, contra.

BY THE COURT.

After hearing the appeal herein, the court was of the opinion that it had no jurisdiction to review the decision of the circuit court from which the appeal was taken, and so announced; but the appellant's counsel filed a petition for rehearing, and insists very strongly that the court was in error. He contends that the proceeding in the circuit court was only the exercise of ordinary equity jurisdiction, and that its decision was a decree from which an appeal will lie to this court under the provisions of the statute regulating appeals. If the proceeding had been a suit to remove the assignee, brought in the ordinary way, the counsel would, no doubt, be correct. When the jurisdiction of a court is called into exercise by an action or suit in the regular mode of proceeding, the right of appeal from the judgment or decree rendered therein, as provided by general statute, will, no doubt, attach, whether such jurisdiction is derived from the common law, or has been conferred by statutory enactment. The decision of the supreme court of California, reported in Sharon v. Sharon, 7 P. Rep. 456, to which our attention has been called, that an action of divorce was within the appellate jurisdiction of that court under the former constitution of that state, could, I think, have been maintained upon this ground, whether such action was in the nature of a case in equity or not.

The proceeding, as I understand, was in the ordinary mode of an action in that state, was commenced and prosecuted in the same manner, and differed from other actions only in the nature of the relief sought. This case is not an action or suit; it is a mere special statutory proceeding, under the act of the legislative assembly, "to secure creditors a just division of the estate of debtors who convey to assignees for the benefit of creditors." The clause under which the proceeding was had, provides that the circuit court, or judge, may, in certain cases, appoint an assignee. It says: "If, on complaint before the court or judge, it should be made to appear that any assignee is guilty of wasting or misapplying the trust-estate, said court or judge may direct and require additional security, and may remove such assignee, and may appoint others instead." Such a complaint was made to the circuit court in this case, and it refused to remove the assignee, but did require him to give additional security, and it is from that ruling that the appeal was taken. The proceeding was had before the court, but might just as well have been had before the judge. It was a mere summary affair, except so far as the parties attempted to dignify it by making up an issue, having a referee appointed, and by going through with all the formality of taking depositions and having a finding of facts and law, and hearing before the...