In re McCormick's Estate

• Decision Date: 15 September 1914
• Citation: 143 P. 915,72 Or. 608
• Parties: IN RE MCCORMICK'S ESTATE. BRANCH v. MCCORMICK'S ESTATE.
• Court: Oregon Supreme Court

143 P. 915

72 Or. 608

IN RE MCCORMICK'S ESTATE. BRANCH v. MCCORMICK'S ESTATE.

Supreme Court of Oregon

September 15, 1914

Department 2.

Appeal from Circuit Court, Multnomah County; T. J. Cleeton, Judge.

In the matter of the estate of H. W. McCormick, deceased. Claim by W. T. Branch against the estate. From a judgment for plaintiff, both parties appeal; the estate being deemed herein the appellant. Reversed and remanded.

McCormick in his lifetime sold the timber on two sections of land in Washington to one Cain for $25,000, and took a note for that amount to be paid each month as the timber was removed during a period of seven years. McCormick afterward assigned his contract with Cain and the said note for $25,000 to Carmody and in connection with the assignment guaranteed to Carmody or his assigns, that there was a certain quantity of timber on the land, and that Carmody would realize $21,500 therefrom. Carmody thereafter assigned the note and contract with the said guaranty to Branch, the plaintiff here. After removing timber and paying for the same to the amount of $8,040, Cain became insolvent and abandoned the contract. Branch thereafter sold the remaining timber to Zufelt and received $8,539.63 therefor, which was less than the guaranty, and this suit is brought to recover the balance of the $21,500. The trial of the case resulted in a judgment in favor of plaintiff for the amount of $4,682.77. Both parties appeal. Many issues are raised as to the diligence of Branch and Carmody in collecting the money and as to the quantity of timber on the land, but there is one error that makes it necessary to send the case back, and renders it unnecessary to consider the other assignments.

A. T Lewis, of Portland (Lewis & Lewis, of Portland, and Dysart &amp Ellsbury, of Centralia, Wash., on the brief), for appellant. J. C. Veazie, of Portland (Veazie, McCourt & Veazie, of Portland, on the brief), for respondent.

EAKIN J. (after stating the facts as above).

Defendant first questions the authority of the circuit court to try the claim of Branch against the McCormick estate also the validity of the act of the Legislature which attempts to transfer all probate business and jurisdiction of the county court in Multnomah county to the circuit court. This is in violation of subdivision 3 of section 23, art. 4, of the Constitution, in that it is local and special in attempting to regulate the practice of the courts of justice in Multnomah county, without any change in the practice in the county court as it relates to probate work, leaving section 1241, L. O. L., to control in the trial of claims against the estate disallowed by the administrator. Said section was attempted to be followed in this proceeding in the circuit court. The circuit court cannot try a case summarily. The effect of the act is to attempt to transfer the practice in the county court in Multnomah county to the circuit court without any attempt to change or modify the procedure in regard to probate matters to fit the circuit court...