Portland Const. Co. v. O'Neil

• Decision Date: 17 April 1893
• Citation: 32 P. 764,24 Or. 54
• Court: Oregon Supreme Court
• Parties: PORTLAND CONST. CO. v. O'NEIL et al. McELVAIN v. WOLFE et al.

32 P. 764

24 Or. 54

PORTLAND CONST. CO. v. O'NEIL et al.McELVAIN v. WOLFE et al.

Supreme Court of Oregon

April 17, 1893

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Suit by the Portland Construction Company against J.R. O'Neil and others, consolidated with a suit by J.S. McElvain against O.D. Wolfe and others.From the decree the Portland Construction Company appeals.Dismissed.

Milton W. Smith, (Walter S. Perry, of counsel,) for appellant.

R Stott, Thos. N. Strong, and J.J. Johnson, for respondents.

MOORE J.

This is a suit brought by the Portland Construction Company, as assignee of Messrs. Wolfe & Callahan, to foreclose a lien upon the property of the Sisters of Charity for excavating for the foundation of St. Vincent's Hospital, at Portland, Or.The answer of the Sisters of Charity admits that there was due a balance of $7,442.16, which sum was deposited with the clerk, but at the trial, on November 14, 1892, the court found that there was due in addition thereto the sum of $1,307.98, and decreed that, if this amount was not paid, the property should be sold to satisfy the lien; that on November 15, 1892, the Sisters of Charity paid into court the amount so found due, and the plaintiff on the next day drew the whole amount so tendered and paid, from the clerk, but did not cancel the decree of record, and kept the same until November 19, 1892, when, becoming dissatisfied therewith, it was returned to the clerk, and on December 7, 1892, the plaintiff attempted to appeal from said decree by serving and filing a notice thereof, wherein it sought to recover the sum of $3,954.87,--$1,000 as attorneys' fees; interest on the whole claim from October 1, 1891; and the costs and disbursements in addition to the amount so decreed.The Sisters of Charity, on January 7, 1893, filed a motion in the court below for an order requiring the clerk to satisfy the decree, which was on January 17, 1893, allowed and the clerk ordered to satisfy the same as of November 16 1892, from which order the plaintiff also appeals.The Sisters of Charity move to dismiss the appeal from the decree of November 14, 1892, and contend that it has been paid and satisfied, while the plaintiff contends that the appeal is from that part of the decree which failed to award the full amount of its claim, and that the acceptance of the fruits of the decree is not a waiver of its right to appeal.Judge Elliott, in his work on Appellate Procedure, (section 150,) says: "It is a general rule that a party who accepts the benefit of a judgment waives the right to prosecute an appeal from it."Mr. Freeman, in his valuable work on Judgments, (section 426,) says that "payment will, of course, operate as a release, if made to the plaintiff or to any person authorized by him to receive it."And the same learned author, at section 466, says that "payment produces a permanent and irrevocable discharge, after which the judgment cannot be restored by any subsequent agreement."The deposit of this money with the clerk was not a payment of the decree, and could not operate as a discharge thereof until the plaintiff accepted it."A tender upon a judgment, if not accepted, does not operate as an extinguishment of the lien."People v. Beebe, 1 Barb. 385.It has been repeatedly held that where the pleadings admitted a certain amount due, and such sum had voluntarily been tendered or paid after judgment, the amount tendered or paid on the judgment may be accepted by the prevailing party without waiving the right to appeal.Embry v. Palmer,107 U.S. 8, 2 S.Ct. 25;Morriss v. Garland,78 Va. 215;Higbie v. Westlake,14 N.Y. 288;Dudman v. Earl,49 Iowa, 37;Manufacturing Co. v. Huiske,69 Iowa, 557, 29 N.W.Rep.621.The Sisters of Charity having admitted that there was due $7,442.16, and having voluntarily tendered this amount, the plaintiff, after judgment, might have accepted the same, because it was a...