Livesley v. Johnston

• Decision Date: 04 April 1904
• Citation: 76 P. 13,45 Or. 30
• Parties: LIVESLEY et al. v. JOHNSTON et al.
• Court: Oregon Supreme Court

76 P. 13

45 Or. 30

LIVESLEY et al. v. JOHNSTON et al.

Supreme Court of Oregon

April 4, 1904

Action by T.A. Livesley and another against John Johnston and others. From a decree for defendants, plaintiffs appeal. On motion to dismiss. Motion denied.

L.K. Adams and G.G. Bingham, for the motion.

Wirt Minor and W.T. Slater, opposed.

WOLVERTON J.

The purpose of the present suit is to require the specific performance of a contract made and entered into by and between plaintiffs and defendant Johnston for the purchase and sale of 110 bales of hops, which were to be, and were grown and produced by Johnston. The complaint contains the usual allegations of performance on the part of the plaintiffs, but avers that defendant Johnston refused to comply with the stipulations on his part to deliver the hops to plaintiffs as contracted. It is further alleged that the defendants Adolf Wolf & Son claim to have a lien upon the hops, and that the defendant the Southern Pacific Company has them in its possession, having been delivered to it by Johnston. The prayer is for a temporary injunction restraining the defendants or either of them from selling or disposing of the hops or removing them from their present place of storage until the final determination of the suit and for a decree requiring the specific performance of the contract for the delivery of the hops by defendants to plaintiffs. The injunction was allowed as prayed, to be and continue in force and effect until the further order of the court. Subsequently a demurrer was interposed to the complaint, and sustained, whereupon a decree was entered dismissing the suit and dissolving the injunction. From this decree plaintiffs have appealed, having given notice thereof in open court at the time of its rendition.

The defendants now move to dismiss the appeal, basing their motion upon a showing that the defendant Johnston has since the decree disposed of the hops, which have been shipped out of the state and beyond the jurisdiction of the court. The contention is that, as the subject-matter of the suit has been disposed of and taken beyond the jurisdiction of the court, the decree respecting it could not become effective or operative, and hence the appeal should be dismissed. This seems to us to mistake the real issue, which is whether Johnston should or should not be required to perform his contract. Whether the hops are still within the custody of the law...