Livesley v. Johnston

• Decision Date: 03 November 1905
• Citation: 82 P. 854,47 Or. 193
• Parties: LIVESLEY et al. v. JOHNSTON et al.
• Court: Oregon Supreme Court

82 P. 854

47 Or. 193

LIVESLEY et al. v. JOHNSTON et al.

Supreme Court of Oregon

November 3, 1905

On motion to recall mandate. Motion granted.

A.M. Cannon and H.J. Bigger, for the motion.

W.T Slater and Wirt Minor, opposed.

PER CURIAM.

This is a motion to recall a mandate. T.A. Livesley and John J Roberts, partners as T.A. Livesley & Co., commenced a suit against John Johnston, Jr., and Adolph Wolf and Julius Wolf partners as Adolph Wolf & Son, and the Southern Pacific Company, a corporation, to compel the specific performance of Johnston's agreement to deliver to them 20,000 pounds of hops grown in 1903, alleging Johnston's insolvency as a ground for the equitable relief invoked. A temporary injunction was issued to restrain the defendants from disposing of the hops, but a demurrer to the complaint was sustained, the injunction dissolved, and the suit dismissed. The plaintiffs appealed from that decree which was reversed the demurrer overruled, and the cause remanded. Livesley v. Johnston, 45 Or. 30, 76 P. 13,946, 65 L.R.A. 783. In the meanwhile the hops grown in 1903 were shipped out of the state by the defendants, and a supplemental complaint was filed, alleging this fact and praying for the damages sustained. The cause was tried on the amended issues and plaintiffs recovered the sum of $2,500, from which decree the defendants appealed.

At the time that decree was given there was also another decree rendered against Johnston in a suit instituted by Livesley & Co., compelling him specifically to perform his agreement to deliver to them 20,000 pounds of hops grown in 1904. After the findings of fact had been made in the former suit, but before the decree passed, Johnston settled the latter case by delivering to Livesley & Co. the hops decreed them, and by a new contract further agreed annually to deliver to them 20,000 pounds of hops for the years 1905 to 1907, inclusive, in accordance with the terms of his original contract. The plaintiffs' counsel, considering that the new agreement was tantamount to a settlement of the decree in the case at bar, so far as Johnston was concerned, informed defendants' counsel that in consequence thereof they intended to move to dismiss the appeal herein as to that party. The defendants' counsel thereafter saw Johnston, who stated that he had settled all matters with Livesley & Co., and based on this information a written agreement was entered into that the appeal should be dismissed as to Johnston, but it was not stipulated therein that his discharge should be without prejudice to any of the other parties. The stipulation was filed in this court July 3, 1905, and three days thereafter a decree was rendered in accordance therewith and against Johnston and the sureties on the undertaking on appeal for the sum of $2,500, and the costs and disbursements of the suit. Based on this decree, a mandate was issued and sent to the court below, where defendants' counsel objected to the entry thereof, and further proceedings thereon were stayed by an order of a justice of this court until the matter of recalling the mandate could be heard. The parties appearing pursuant to notice, plaintiffs' counsel insist that jurisdiction of the cause, so far as it relates to Johnston, was lost by sending down the mandate, and that this court is powerless to recall it. In Ah Lep v. Gong Choy, 13 Or. 429, 11 P 72, it is intimated that the authority to recall a mandate after it has been transmitted to the court below, is very doubtful. This statement is not borne out by the weight of adjudged cases nor consonant with the rule prevailing in this court, where the practice has been to recall a mandate after it has been received in the court below for the purpose of correcting to error or irregularity therein or an inadverttence in issuing it. State v. Pennoyer, 26 Or. 205, 37 P. 906, 41 P. 1104, 25 L.R.A. 862. In Morrell v....