McCargar v. Moore
| Decision Date | 06 June 1916 |
| Citation | 88 Or. 682,157 P. 1107 |
| Parties | MCCARGAR ET AL. v. MOORE ET AL. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.
Action by C. A. McCargar and others, copartners, doing business under the firm name and style of McCargar, Bates & Lively against L. M. Moore, doing business as L. M. Moore & Co., in which attachment was issued and levied, whereupon defendant executed bond for its release, with the Illinois Surety Company as surety. There was judgment for plaintiffs by consent, and upon issuance of execution the surety company applied for hearing. From denial of the application the surety company appealed, and plaintiffs move to dismiss. Motion to dismiss denied, with the privilege to renew and submit briefs and arguments at final hearing of the cause.
Thomas Mannix, of Portland, for appellants. Senn, Ekwall & Recken, of Portland, for respondents.
Plaintiffs move to dismiss this appeal for the reason that the judgment appealed from was rendered by consent. They commenced an action against defendant L. M. Moore, doing business as L. M Moore & Co., for the collection of $581.15. An attachment was issued and levied upon certain property, whereupon the defendant executed a bond for its release under section 311 L. O. L., with the Illinois Surety Company as surety thereon. Two other actions were instituted by the same plaintiffs against the same defendant. The aggregate amount claimed in the three actions is stated to be about $1,300. On September 14, 1915, a stipulation was entered into between the plaintiffs and defendant Moore to settle all three actions for the sum of $860, conditioned that if the same were not paid within a certain time, judgment should be entered for the agreed amount. No liquidation having been made, on December 16, 1915, upon notice to Moore's counsel, judgment was entered in the first action against defendant and also against his surety on the bond for the discharge of the attachment, for the sum of $581.15, the total amount claimed in the action with interest and costs. See L. O. L. § 308. The record does not disclose that any notice was given to the surety company. Upon the issuance of an execution the surety company applied to the circuit court for a hearing in the matter for the reasons: (1) That it had no notice or knowledge of the proposed entry of the judgment, and was not a party to the stipulation; (2) that the action in which the bond for the discharge of the attached property was filed was settled for approximately $320; and (3), that a portion of the attached property was not released to defendant Moore. This application being denied, the surety company appeals.
The stipulation for a settlement of the amount claimed in the three actions does not specify what sum should be recovered in the particular action wherein the bond for the release was filed. The amount of the liability of the surety company on the undertaking as surety for the defendant in the attachment does not appear to have been determined, or attempted to be determined, by the stipulation. It was fixed by the bond, and could...
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McCargar v. Moore
...the appeal for want of jurisdiction. A statement of the facts and a memorandum of the former consideration of the motion will be found in 157 P. 1107. After a review we see no reason changing the expression therein recorded as to that part thereof relating to judgment being rendered by cons......