Niedermeyer, Inc. v. Fehl

• Decision Date: 19 May 1936
• Parties: NIEDERMEYER, Inc., v. FEHL et al. [*]
• Court: Oregon Supreme Court

57 P.2d 1086

153 Or. 656

NIEDERMEYER, Inc., v. FEHL et al. ^[*]

Supreme Court of Oregon

May 19, 1936

In Banc.

Appeal from Circuit Court, Jackson County; Carl E. Wimberly, Judge.

Interpleader suit by Niedermeyer, Incorporated, against Earl H. Fehl and Electa A. Fehl, husband and wife, Corinthia E. Stailey, E. E Kelly and E. C. Kelly, co-partners doing business under the firm name and style of Kelly & Kelly, Eagle Point Irrigation District, and others. From the decree, defendants Earl H Fehl, Electa A. Fehl, and Corinthia E. Stailey appeal, and Niedermeyer, Incorporated, cross-appeals.

Decree in accordance with opinion.

This suit was instituted as an interpleader suit to determine the ownership of a sum of money, $6,473.01, with interest, in the hands of plaintiff Niedermeyer, Inc., due and owing from plaintiff to Earl H. Fehl, or persons claiming through him.

On March 16, 1932, plaintiff Niedermeyer, Inc., an Oregon corporation, filed a suit in the circuit court for Jackson county, Or., against Earl H. Fehl and Electa A. Fehl, husband and wife, and others, for the purpose of foreclosing a mortgage on certain real property belonging to the defendants Fehl, situated on West Sixth street, Medford, Or. The mortgage secured a promissory note in the sum of $3,500 dated April 1, 1926, payable on or before two years after date, bearing interest at the rate of 7 per cent. per annum. The defendants Earl H. Fehl and Electa A. Fehl filed an answer in the suit for the foreclosure of the real estate mortgage in which they set up several counterclaims totaling in excess of $20,000, and contended that the said note and mortgage had been fully paid by said claims for work, labor and services performed by Mr. Fehl for Louis Niedermeyer prior to the assignment of said note and mortgage by him to the plaintiff Niedermeyer, Inc. The case was tried before the Honorable E. C. Latourette, circuit judge, who decided said suit in favor of the plaintiff Niedermeyer, Inc., and entered a decree providing for the foreclosure of the real estate mortgage. The judgment and decree foreclosing the real estate mortgage was entered on November 29, 1932, and awarded the plaintiff Niedermeyer, Inc., a judgment in the sum of $3,500 together with interest thereon at the rate of 7 per cent. per annum from April 1, 1927, $350 attorney's fees, and its costs and disbursements. Shortly after the entry of said judgment, plaintiff caused an execution to be issued, and based upon such execution the premises covered by such mortgage were sold by the sheriff of Jackson county on January 7, 1933, to J. B. Thomas and Nora L. Thomas and Ted Heimroth, for the sum of $5,372.43, of which amount $5,371.43 was paid over to the plaintiff Niedermeyer, Inc. by the sheriff, being the full amount due plaintiff on the date of such sale.

J. B. Thomas and Nora L. Thomas and Ted Heimroth purchased the property at execution sale pursuant to agreement entered into with Mrs. Fehl, by the terms of which Mr. and Mrs. Thomas furnished $3,900, Ted Haimroth furnished $1,400, and Mrs. Fehl furnished $72.43. The amounts advanced by the Thomases and Heimroth were considered as loans to Mrs. Fehl, and it was agreed that the certificate of sale should be issued to Mr. and Mrs. Thomas and Mr. Heimroth and held in escrow by A. C. Walker, county treasurer, as security for the repayment of the money loaned to Mrs. Fehl.

On January 24, 1933, a notice of appeal was filed by defendants Earl H. Fehl and Electa A. Fehl. Thereafter an undertaking on appeal was filed for costs but no supersedeas undertaking or stay bond was ever filed. The Supreme Court rendered its opinion [Niedermeyer, Inc., v. Fehl, 148 Or. 16, 33 P.2d 960, 35 P.2d 477], and thereafter rendered and entered its mandate reversing the judgment and decree of the lower court, and holding, in effect, that the real estate mortgage had been fully paid and satisfied by the defendants Fehl prior to the institution of the suit and foreclosure thereof by the plaintiff. On behalf of defendants Earl H. Fehl and Electa A. Fehl, the defendant E. E. Kelly, a member of the firm of Kelly & Kelly, and one of the attorneys who had represented the defendants Fehl in the circuit court and also on appeal, filed a motion in the Supreme Court requesting the Supreme Court to recall its mandate and enter a corrected mandate ordering the plaintiff Niedermeyer, Inc., to take specific restitution to the defendants Fehl of the sum of $5,371.43, the amount received by plaintiff from the sale of the property involved. The Supreme Court refused to recall its mandate in Niedermeyer, Inc., v. Fehl, supra, and directed that such restitution as was proper under the facts should be ordered by the circuit court.

On July 14, 1934, Messrs. Kelly & Kelly, attorneys at law, who represented the Fehls in both the circuit court and upon the appeal to the Supreme Court, served upon Niedermeyer, Inc., a notice of attorneys' lien wherein they claimed a lien in the sum of $2,000, for services rendered by them, upon moneys or property in the hands of the plaintiff belonging to the Fehls as a result of the reversal of the foreclosure decree.

On June 6, 1934, the defendant T. J. Enright, who had represented the Fehls in the trial of the case in the circuit court, served upon plaintiff a notice of attorney's lien, wherein he claimed a lien upon any money due defendants by plaintiff in the sum of $500 for services rendered by him to defendants Fehl in the circuit court.

On September 29, 1934, defendants Fehl and Corinthia E. Stailey wrote a letter to George M. Roberts, the attorney representing Niedermeyer, Inc., advising him that they were no longer represented by either Mr. Kelly or Mr. Enright and that the action of Mr. Kelly in attempting to have the Supreme Court order a restitution of the proceeds of the sale was entirely unauthorized, and in said letter defendants made a demand for the payment of the proceeds of the sale to them. On the same day a letter was written to defendant E. E. Kelly by defendants Fehl directing him to take no further legal action for the purpose of securing restitution of the property or the proceeds of the sale, and a copy of the letter was forwarded to Mr. Roberts, as attorney for plaintiff. Likewise on the same day a letter was written by defendant Fehl to Mr. Arthur S. Benson, clerk of the Supreme Court, requesting him to enter of record their objections to any motion or attempt to modify or recall the mandate of the Supreme Court, and a copy of this letter was likewise forwarded to Mr. Roberts.

J. B. Thomas and Nora L. Thomas plead and assert a claim against the plaintiff by virtue of a writ of attachment issued out of the circuit court for Jackson county in an action wherein J. B. Thomas and Nora L. Thomas were plaintiffs and Earl H. Fehl and Electa A. Fehl were defendants, by which writ of attachment the said Thomases attempted to attach and garnish any money which might be due and owing from plaintiff to the Fehls, as a result of the decision of the Supreme Court. The validity of this attachment was denied by the defendants Fehl.

Defendant Corinthia E. Stailey pleaded and contended that she had acquired title to the property which was the subject-matter of the foreclosure suit, and asserted that her title to the property was superior to any lien or interest held by the defendants Thomas and Heimroth.

Defendants Fehl asserted that the plaintiff Niedermeyer, Inc., should pay to them the amount received from the sale of the property.

Plaintiff Niedermeyer, Inc., pleaded that the property had been sold at foreclosure sale to J. B. Thomas, Nora L. Thomas, and Ted Heimroth, prior to the filing of the notice of appeal, and that various conflicting claims were being asserted against the plaintiff as a result of the reversal of the decree of the circuit court, and alleged that attorneys' liens had been filed by defendants Kelly & Kelly and J. T. Enright, the validity of which liens was disputed by defendants Fehl; that J. B. Thomas, Nora L. Thomas, and Ted Heimroth were asserting a right to the proceeds of the sale received by Niedermeyer, Inc.; that Corinthia E. Stailey claimed to have title to the property sold at the foreclosure sale superior to any interest of the said J. B. Thomas, Nora L. Thomas, and Ted Heimroth; that Jackson county, Or., claimed a lien on the proceeds of the sale by virtue of a judgment for costs in the case of State of Oregon v. Earl H. Fehl (Or.) 52 P.2d 1118; and that defendants Earl H. Fehl and Electa A. Fehl were demanding both a return of the property, free from the lien of the mortgage, and were also demanding from Niedermeyer, Inc., the proceeds from the sale of the property, together with interest thereon.

Plaintiff petitioned the circuit court to enter an order citing all of the claimants named to appear in said proceeding, so that the rights of all of said parties might be fully determined and adjudicated, and that the court order Niedermeyer, Inc., to make such restitution as might be proper. Judge Latourette suggested that Niedermeyer, Inc., pay the proceeds of the sale to the clerk of the circuit court. Plaintiff Niedermeyer, Inc., believing that it was not safe to pay the money to the clerk without a judgment of a competent court having jurisdiction of the various claimants, instituted the instant suit and made all of the various claimants parties defendant, so that the rights to the fund might be determined.

The circuit court decreed that the plaintiff forthwith pay to the clerk of that court the sum of $6,473.01; that out of such funds so deposited in court there should be paid by the clerk the following amounts to the following persons in the following order of priority, to wit: (1) The amount of plaintiff's...