Johnston v. Shofner

• Decision Date: 25 October 1892
• Citation: 31 P. 254,23 Or. 111
• Parties: JOHNSTON v. SHOFNER.
• Court: Oregon Supreme Court

31 P. 254

23 Or. 111

JOHNSTON v. SHOFNER.

Supreme Court of Oregon

October 25, 1892

Appeal from Multnomah county; L.B. STEARNS, Judge.

Proceedings by Emily L. Johnston, as executrix of A. Johnston, deceased against J.C. Shofner, as administrator of Wesley Jackson deceased, to secure the allowance of a claim against the estate of defendant's intestate. The claim having been disallowed by the administrator, it was presented to the county court, where a summary hearing was had under Hill's Code, § 1134, and judgment was rendered for plaintiff. Defendant appealed to the circuit court, where the case was dismissed on the ground that it was triable as a suit in equity, and that no evidence taken on the trial in the county court accompanied the transcript on appeal, and no bill of exceptions was in the record. From the latter judgment, defendant appeals. Reversed.

Bronaugh McArthur, Fenton & Bronaugh, for appellant.

R. & E.B. Williams & Carey, for respondent.

LORD, C.J.

This was a proceeding originally commenced in the county court of Multnomah county to have a claim for money against the estate of Wesley Jackson allowed, which the defendant, as administrator of such estate, had disallowed and rejected. When the matter came on to be heard, the court, after hearing the evidence of the parties, found that the claim should be allowed, and ordered that the defendant, as such administrator, allow the claim, and that he pay it in due course of administration. From this order an appeal was taken to the circuit court for Multnomah county. The circuit court for that county is divided into department No. 1, in which civil jury cases are tried, and department No. 2, in which suits in equity and criminal cases are tried and determined. Upon the transcript being filed in department No 1, the plaintiff moved the court for an order affirming the order of the probate court, on the ground that the case was triable in equity, and not at law. The court held that the cause should be heard on the appeal as an equity case, and transferred it to department No. 2. After the transfer, the plaintiff renewed his motion for an order of affirmance upon the ground that no evidence taken on the trial in the probate court accompanied the transcript on appeal, and no bill of exceptions was in the record. The court sustained the motion on this ground, and ordered and decreed that the judgment order made by the probate court be affirmed. From this order and decree the appeal has been brought to this court.

The record discloses that the cause was heard and determined in a summary manner by the county court, under section 1134 of Hill's Code. The testimony was taken orally, and was not reduced to writing. The appeal was taken to the circuit court, and the transcript filed in department No. 1, upon the theory that the cause of action was at law, and triable by a jury. The transfer of the cause to department No. 2, and the affirmance of the order by that court, were based on the ground that proceedings in probate on appeal were to be heard and determined as in suits in equity, and consequently, as there was no evidence accompanying the transcript on appeal there was nothing for the appellate court to try, and the order of the county court must be affirmed. The question of practice involved in this controversy has been directly presented and decided by this court in Wilkes v. Cornelius, 21 Or. 345, 351, 23 P. 473, and 28 P. 135. It arose upon a claim for money for services rendered, which the executor disallowed, when the claimant presented it to the county court for allowance, under section 1134, supra, providing for the adjudication of claims against the estate of a deceased person in a summary manner. The county court disallowed the claim, and an appeal was taken to the circuit court, and the transcript contained all the evidence received as evidence by the county court. From all this it will be observed that the proceeding was prosecuted in the nature of a suit in equity as distinguished from an action at law, as prescribed by section 1077. Referring to the mode of procedure and the judgment obtained under section 1134, in delivering the opinion of the court, THAYER, C.J., said: "It declares that the order of allowance or rejection of the claim shall have the force and effect of a judgment, from which an appeal may be taken as in ordinary cases. Such a judgment must obviously be regarded in the same light as a judgment for the recovery of money in an action; and, if an appeal be taken therefrom to the circuit court, it will involve the trial anew of the matters in issue between the parties, which should be conducted in the same manner as trials at law for the recovery of money are conducted in circuit courts. The parties are entitled to have a jury trial, which can only be waived as provided by Hill's Code, § 218, and to have the judgment given therein reviewed in this court...