Nadstanek v. Trask

• Decision Date: 22 October 1929
• Parties: NADSTANEK v. TRASK ET AL.
• Court: Oregon Supreme Court

281 P. 840

130 Or. 669

NADSTANEK v. TRASK ET AL.

Supreme Court of Oregon

October 22, 1929

Department 2.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by Lillie Nadstanek against G. B. Trask, as administrator of the estate of Susan F. Trask, deceased, and others. A judgment dismissed the complaint as to the administrator, and plaintiff appeals. Reversed, and the case remanded, with directions.

This appeal is from a judgment in favor of defendant G. B. Trask as administrator of the estate of Susan F. Trask, deceased. A demurrer to plaintiff's complaint was sustained, and judgment entered dismissing the complaint as to said administrator. The case was instituted on a promissory note given by said administrator's intestate and the other defendants. The note was a joint note. The only question involved is the liability of the estate of a decedent on a joint note when decedent passed away before an action to collect the same had been instituted. No other question is raised by the demurrer, and the issue is directly joined by the contention on the part of plaintiff that liability on a joint note survives the death of a joint maker against his personal representatives when the decedent passed on before any action or proceedings had been commenced to collect the note. The present action was begun June 2, 1928. Decedent Susan F. Trask, died September 28, 1919. The statute of limitations is not involved.

Jas. G Heltzel and Bert T. Ford, both of Salem, for appellant.

Geo. R Duncan and John H. Carson, both of Salem (Geo. R. Duncan and Carson & Carson, all of Salem, on the brief), for respondents.

COSHOW C.J. (after stating facts as above).

The parties to this litigation agree that under the common law the liability of a joint maker of a promissory note dies with his death before an action has been instituted to collect said joint obligation. Such was the holding in McLaughlin v. Head, 86 Or. 361, 168 P. 614, L. R. A. 1918B, 303; Portland Trust Co. v. Havely, 36 Or. 234, 242 et seq., 59 P. 466, 61 P. 346; Pomeroy's Code Remedies (5th Ed.) § 203; 13 C.J. 574, 575, § 558. See, also, 13 C.J. 574. Plaintiff insists that the common law in that regard was repealed by Or. L. § 379. The language in sections 378 and 379 justify the argument advanced by plaintiff. Said sections are as follows:

"§ 378. What Causes of Action do not Survive. A cause of action arising out of an injury to the person dies with the person of either party, except as provided in section 380; but the provisions of this chapter shall not be construed so as to abate the action mentioned in section 39, or to defeat or prejudice the right of action given by section 34."

"§ 379. What Causes of Action do Survive. All other causes of action. by one person against another, whether arising on contract or otherwise, survive to the personal representatives of the former and against the personal representatives of the latter. Where the cause of action survives as herein provided, the executors or administrators may maintain an action at law thereon against the party against whom the cause of action accrued, or after his death against his personal representatives."

This language is clear and comprehensive. There is no ambiguity. All other causes of action survive to the personal representatives. The two sections are parts of the same act of the Legislature, and should be construed together. Section 378 specifies the causes of action which die with the person. Section 379 prescribes that all other causes of action survive to the personal representatives. The learned circuit judge, who presided at the trial of the action, was doubtless controlled by the ruling of this court in McLoughlin v. Head, above. No reference is made in the opinion in that case to either of sections 378 or 379. An examination of the briefs in that case discloses that attorneys for neither plaintiff nor defendant referred to said sections. Both of the parties conceded that the common-law rule, under which the liability of a joint maker of a note dies with his death, was still in force in this state. I can conceive of no other purpose than the change of the common law in that regard by the enactment of said sections 378 and 379. Said section 379 embraces, not only joint makers of a joint obligation, but also other causes of action which would not survive under the common law. But the purpose of section 379 was to designate the causes of actions which survive the person. If the common law were to remain in force, why should sections 378, 379, and 380 have been enacted? The ruling in McLaughlin v. Head would doubtless have been different had the court's attention been directed to said sections 378, 379, and 380.

The principle under consideration was quite thoroughly discussed in Portland Trust Co. v. Havely, above, beginning in page 242 of 36 Or., 61 P. 346. The opinion is per curiam, and among other things contains this language:

"The common-law rule that an action at law cannot be maintained against the personal representatives of a joint obligor is well settled."

The opinion then states that equity interposes to protect the creditor where the surviving obligor is insolvent as well as under some other conditions. In referring, however, to the obligation of a surety on a bond, the opinion reads in page 243 of 36 Or., 61 P. 347:

"But it is said, 'This presumption is never indulged in in the case of a mere surety, whose duty is measured alone by the legal force of the bond, and who is under no moral obligation whatever to pay the obligee, independent of his covenant, and consequently there is nothing on which to found an equity for the interposition of a court of chancery.' Pickersgill v. Lahens, 82 U.S. (15 Wall.) 140, 144, 21 L.Ed. 119."

The case of Portland Trust Co. v. Havely, above, involved the principle under discussion because H. W. Ross, surety for defendant Havely, died after the appeal was taken. Said H. W. Ross executed a joint undertaking. His attorney moved to prevent the entry of a judgment against Ross's personal representatives, relying on the principle that Ross's liability died with his person. Notwithstanding that Ross's obligation was that of a surety, and notwithstanding the well-established common-law principle that equity will not interpose to inflict the liability on the personal representatives of a deceased surety, judgment was entered against the personal representatives of said Ross. Why? Because of the provision of our statute to the effect that "the court is authorized to enter judgment against the surety, also, according to the nature and extent of his undertaking (that is to say, when the judgment of the court below is sustained, then and in that event judgment should be entered against his surety as well); and it is not possible that the legislature contemplated that any particular form of the undertaking should be necessary to give the court jurisdiction to enter judgment or decree against the surety. The judgment or decree to be rendered against the surety, within the contemplation of the act, is in its nature several,--as much so as that against the principal, as the law requires the same judgment or decree to be entered against the surety, in like manner and with like effect, as against the principal. * * * There is no suit or action upon the bond, and the sole question is whether the surety has authorized the entry of judgment or decree against him, and the fact that the undertaking is in form joint, and not joint and several, or several, is not, as we believe, by legislative intendment, controlling. * * * But we think that we have direct authority under the statute, regardless of the form of the undertaking in that respect, to enter the decree against the surety in like manner as it is entered against the principal. Such being the case, the form of the obligation being joint in tenor does not relieve the estate from the obligation." Portland Trust Co. v. Havely, 36 Or. 242, 245, 246, 61 P. 346, 347.

In other words, it is held in the Havely Case that the provisions of the statute modified the common law in so far as the obligation of the personal representatives of a joint surety on an undertaking on appeal is concerned. No reference to survivorship whatever is made in the statute in that connection. Or L. § 559, subd. 4. But Or. L. § 379, expressly prescribes that all causes of action, except those mentioned in section 378, survive. In McLaughlin v. Head, above, the attorneys for the defendant relied upon Portland Trust Co. v. Havely, above. But that case was decided on the strength of the statute. Or L. § 559, subd. 4. That statute has no application to the instant case.

The attorneys for defendants claim that the common law with respect to the liability of the personal representatives of a deceased joint obligor had not been changed by statute in this state. I repeat that such a construction would destroy the effect and force of said sections 378 and 379. It cannot be denied that the subject-matter is within the power of the Legislature to enact. Said sections do not violate the fundamental law of the state. This court should not hesitate to correct an error which was caused by the failure on the part of counsel to call to the attention of the court in a former case a controlling statute. In neither Portland Trust Co. v. Havely, nor McLaughlin v. Head, above, is section 378 or 379 referred to. These are the two sections, however, which name or describe the causes of action which die with the death of a person or survive against his personal representatives.

Reliance is placed upon Rinker v. Hurd, 69 Wash. 257, 124 P 687. The court in that case held that the action did not survive against the estate of the wrongdoer. The...