Mason v. Mason
| Citation | 34 P.2d 328,148 Or. 34 |
| Parties | MASON v. MASON et al. [*] |
| Decision Date | 10 July 1934 |
| Court | Supreme Court of Oregon |
Appeal from Circuit Court, Morrow County; Carl Hendricks, Judge.
Suit by F. E. Mason against Mary Mason and C.J. D. Bauman, sheriff of Morrow County. From a judgment dismissing plaintiff's suit, plaintiff appeals.
Reversed with directions.
Charles Z. Randall, of Pendleton (J. O. Turner, of Heppner, and Fee & Randall, of Pendleton, on the brief), for appellant.
John F Kilkenny, of Pendleton (Raley, Raley & Warner and Alfred F Cunha, all of Pendleton, on the brief), for respondents.
On May 14, 1919, Mary Mason, one of the defendants herein, obtained in the circuit court for Morrow county a decree of divorce from F. E. Mason, the plaintiff herein, and was awarded the custody of two minor children. While that suit was still pending in that court, the parties entered into a contract settling their property rights between them. It was agreed that he should convey to her certain of his real property and that she should relinquish to him all her right, title, and interest in the remainder; that he should pay all the costs and attorney's fees incurred in the suit; that he should pay her $300 in cash as alimony and also should pay to her $40 per month for the support and education of said children. After entering into said contract, plaintiff made no further appearance in the suit and a decree was entered which divided the property between them as had been agreed upon and awarded the custody of the children to her, and otherwise conformed to the contract except it provided that plaintiff should pay to her "as alimony and for the support of said children and herself the sum of $300 in cash and $40 per month beginning with the month of May, 1919." Of this change by the decree in the terms of the contract, if it amounted to a change, plaintiff had no notice or knowledge and never consented thereto. After the entry of the decree both parties fully complied therewith until May, 1926, when she abandoned the custody of the children and refused any longer to support or maintain them and thereupon plaintiff took said children into his own custody and ceased paying any sums of money to her and maintained and educated said children until one of them had died and the other, in 1931 had become of age, and while so doing expended more than $40 per month in their education and support.
In April, 1932, although some thirteen years had elapsed after the entry of the divorce decree and the same had never been docketed in the judgment lien docket of the county nor become a lien against plaintiff's real property and, although one of said children was then dead and the other had become of age, the clerk of the court, at the instigation of Mary Mason and without notice to plaintiff or application having been made to or action taken by the court, docketed said decree in the judgment lien docket of Morrow county as a lien against plaintiff's real property in the sum of $2,680, which amounted to $40 per month from May, 1926, when she abandoned the children, to April, 1932, when said docketing was done, and issued a writ of execution thereon and placed the same in the hands of her co-defendant as sheriff of the county for service.
Whereupon plaintiff brought this suit to enjoin the enforcement of the writ, setting up the foregoing facts in his complaint as a defense against the validity of the writ and also by way of an estoppel. A demurrer to the complaint was sustained, the suit was dismissed, and plaintiff has appealed.
Plaintiff assigns the ruling of the court in sustaining the demurrer to the complaint as error upon the following grounds: (1) That by force of section 1-203, Oregon Code 1930, the divorce decree had become dormant and plaintiff's obligations thereunder terminated at the expiration of ten years from the date of its rendition; (2) that there was no authority in law for the clerk to docket the decree nor to issue an execution thereon and, therefore, that the writ is void; and (3) that the plaintiff in the writ is estopped by her own misconduct in refusing to exercise custody over the children and to support and maintain them, to assert any claim or demand against the plaintiff for any payment whatever during the time she was herself in default and while plaintiff was supporting the children.
Section 1-203 provides: "An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States," shall only be commenced within ten years. This section was held to have no application to a domestic judgment or decree in Murch v. Moore, 2 Or. 189, and Strong v. Barnhart, 5 Or. 496. Plaintiff contends that the ruling in those cases ought not be adhered to now for the reason that it is contrary to the great weight of authority in other states where the same or a similar statute obtains. He cites numerous cases to support his contention and particularly the case of Citizens' National Bank v. Lucas, 26 Wash. 417, 67 P. 252, 56 L. R. A. 812, 90 Am. St. Rep. 748, where, after reviewing many decisions, Mr. Justice Dunbar held that a statute of the state of Washington identical to our own was applicable to domestic judgments. Our statute was enacted on October 11, 1862. See section 5, title 2, General Laws of Oregon, compiled and annotated by M. P. Deady. On the same day sections 271-292 of the same compilation were likewise enacted. Under these latter sections, a judgment could be continued in force indefinitely merely by the issuance of writs of execution and, if a period of five years had elapsed without an execution having been issued on said judgment, an execution could be thereafter issued on application made to the court in the manner provided by said section 292. These provisions which refer to domestic judgments and decrees only and have no application to the judgments of a sister state clearly show that it was not the intention of the Legislature to make section 5, title 2, now section 1-203, Oregon Code 1930, applicable to a domestic judgment or decree.
Again, in Beekman v. Hamlin, which was before this court upon three different appeals and is reported in 19 Or. 383, 24 P. 195, 10 L. R. A. 454, 20 Am. St. Rep. 827; Id., 20 Or. 352, 25 P. 672; and Id., 23 Or. 313, 31 P. 707, and which was a proceeding on motion for leave to issue execution on a dormant judgment, the judgment in that case had been rendered some twenty-seven years before the filing of the motion and there had been no partial satisfaction of the judgment and no execution had been issued thereon, and, in effect, it was held that the lapse of time, upon a proper showing being made, was not a bar to the revival of the judgment and the issuance of an execution thereon. Point 2 of the syllabus upon the third appeal (23 Or. 313, 31 P. 707), reads as follows:
"On a motion for leave to issue execution on a dormant judgment under Hill's Code, § 295, the presumption of payment arising from the lapse of twenty years, may be rebutted by any evidence of the situation of the parties, or other circumstances tending to satisfy the jury that the debt is still due; and the evidence of the plaintiff, if uncontradicted and entitled to full credit, is sufficient to establish that fact."
From each of the three decisions in Beekman v. Hamlin, supra, it seems clear that the court was of the opinion that section 1-203 had no application to a domestic judgment or decree. See, also, Bowman v. Holman, 53 Or. 456, 99 P. 424, and Alexander v. Munroe, 54 Or. 500, 513, 101 P. 903, 103 P. 514, 135 Am. St. Rep. 840. We, therefore adhere to the rulings in Murch v. Moore and Strong v. Barnhart, supra.
We think, however, that plaintiff's second and third contentions must each be sustained. Section 2-1601 makes it the duty of the clerk immediately after the entry of judgment in any action to docket the same in the judgment docket and makes the judgment, when so docketed, a lien upon the real property of the defendant in that county, or which he may afterward acquire therein during the time an execution may issue thereon. That section is made applicable to decrees by section 6-210. In order, therefore, for a judgment or decree which does not affirmatively provide that it shall be a lien upon real property to become a lien thereon, it is necessary that the judgment or decree be first docketed in the judgment lien docket of the county wherein the decree was rendered. The decree in the instant case did not affirmatively provide that it should be a lien upon any property and it was not docketed until April, 1932, some thirteen years after its rendition. Therefore, if it became a lien at all upon plaintiff's real property,...
To continue reading
Request your trial
-
Marriage of Cook, In re
...464, 172 So.2d 29; Steckler v. Steckler (Mo.1956), 293 S.W.2d 129; Chapman v. Chapman (1945), 177 Or. 239, 161 P.2d 917; Mason v. Mason (1934), 148 Or. 34, 34 P.2d 328. The courts are generally reluctant to state any general rule as to when an estoppel arises, but generally the equitable pr......
-
State ex rel. Tolls v. Tolls
...and a lien on the defendant's real estate as to any installments accrued and unpaid. The section was again considered in Mason v. Mason, 148 Or. 34 (34 P. (2d) 328), where the court held, construing the statute, as amended, that a decree for the payment of alimony in installments did not be......
-
Armstrong v. Green
...child for that period and yet appellant asks that she be paid for the support of the child for that period. In the case of Mason v. Mason, 148 Or. 34, 34 P.2d 328, it was held that a wife who had abandoned the children was not entitled to recover payments during the period of abandonment. I......
-
Esselstyn v. Casteel
...and could be 'terminated at any time' and because the amount of it was impossible of computation. To the same effect see Mason v. Mason, 148 Or. 34, 41, 34 P.2d 328. The amount here is specific and not subject to change, and it is required to be paid within a definite time. In 1921 the legi......