Priester v. Thrall

Decision Date02 March 1960
Citation349 P.2d 866,229 Or. 184
PartiesEldon L. PRIESTER and Ruby H. Priester, husband and wife, Respondents, v. Harry THRALL and Ardath Thrall, husband and wife, Appellants.
CourtOregon Supreme Court

Davis, Jensen, Martin & Robertson, Portland, for the motion.

Lenske, Spiegel & Spiegel, Portland, contra.

ROSSMAN, Justice.

This cause which was instituted pursuant to the provisions of our laws which authorize the maintenance of forcible entry and wrongful detainer actions (ORS 105.105 through 105.160) is before us upon a motion made by the plaintiffs to dismiss the defendants' appeal. The motion is predicated upon the fact that the defendants have not filed the undertaking which ORS 105.160 describes in the following language:

'If judgment is rendered against the defendant for the restitution of the real property described in the complaint, or any part thereof, no appeal shall be taken by the defendant from the judgment until he gives, in addition to the undertaking now required by law upon appeal, an undertaking to the adverse party, with two sureties, who shall justify in like manner as bail upon arrest, for the payment to the plaintiff if the judgment is affirmed on appeal of twice the rental value of the real property of which restitution is adjudged from the commencement of the action in which the judgment was rendered until final judgment in the action.'

This action was begun July 3, 1959, when the plaintiffs filed a complaint in the district court for Multnomah County seeking the recovery of the possession of a house and lot situate in Portland. The answer made it apparent that the title to the real property described in the complaint was in issue, and thereupon the district court transferred the cause to the circuit court. November 5, 1959, the circuit court, after trial of the issues presented by the answer, entered a decree in favor of the plaintiffs which declared, 'the defendants have no legal or equitable interest in the property.' November 6, 1959, the circuit court entered a judgment of restitution in favor of the plaintiffs which was based upon the verdict of the jury which found the defendants guilty. November 9, 1959, a writ of execution was issued and November 19, 1959, the sheriff made his return which stated that November 9, 1959, 'he made demand on the within named defendants for the premises described as follows * * * which said demand was complied with.'

Although the defendants, in appealing, have not submitted an undertaking of the kind described in ORS 105.160, they nevertheless filed the undertaking exacted by ORS 19.040(1).

We see from the foregoing that although the defendants promptly vacated the premises when the circuit court entered the challenged judgment, the plaintiffs insist that the defendants cannot appeal without executing, in addition to the undertaking required by ORS 19.040, the additional undertaking required by ORS 105.160, that is, one 'with two sureties * * * for the payment to the plaintiff if the judgment is affirmed on appeal of twice the rental value of the real property.'

This court has held that the filing of the undertaking described in ORS 105.160 is a prerequisite to an appeal by the tenant. Zelig v. Blue Point Oyster Co., 54 Or. 543, 104 P. 193; Heiney v. Heiney, 43 Or. 577, 73 P. 1038; Danvers v. Durkin, 14 Or. 37, 12 P. 60. In those cases the tenant wished to remain in possession pending the outcome of the appeal. The undertaking, therefore, when given, stayed enforcement of the challenged judgment.

This action was begun July 3, 1959, and since it has not yet progressed any further than the notice of appeal and the undertaking, no imagination is needed to make it plain that if the defendants must meet the demands of ORS 105.160 they must submit themselves to a liability of major proportions unless the rental value of the property described in the complaint is small.

We have mentioned the fact that within three days of the entry of the challenged judgment the defendants had quit the property. Accordingly, we assume that the plaintiffs have possession. If the judgment of the circuit court had been...

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5 cases
  • Lindsey v. Normet 8212 5045
    • United States
    • U.S. Supreme Court
    • February 23, 1972
    ...entitled to twice the rents accruing during the appeal without proof of actual damage in that amount. See Priester v. Thrall, 229 Or. 184, 187, 349 P.2d 866, 868 (1960). In Scales v. Spencer, 246 Or. 111, 113—114, 424 P.2d 242, 243 (1967), the Oregon Supreme Court explained the rationale of......
  • State ex rel. Nilsen v. Whited
    • United States
    • Oregon Supreme Court
    • November 25, 1964
    ...of ORS 652.335 is a reasonable foundation for its validity: State v. Harmon, 1961, 225 Or. 571, 358 P.2d 1048; Priester v. Thrall, 1961, 229 Or. 184, 349 P.2d 866, 365 P.2d 1050; Simons v. Smith, 1961, 229 Or. 277, 366 P.2d Due Process does not foreclose legislation reasonably desigened to ......
  • Goldie's Bookstore v. Superior Court of Cal., Civ. S-83-825 RAR.
    • United States
    • U.S. District Court — Eastern District of California
    • June 13, 1984
    ...Ore.R.S. § 105.160. Should judgment be affirmed, the bond is automatically forfeited without proof of actual damage. Preister v. Thrall, 229 Or. 184, 187, 349 P.2d 866, 365 P.2d 1050 The Supreme Court struck down this double-bond provision because it heavily burdened the statutory right to ......
  • Bosley's Adoption, In re
    • United States
    • Oregon Court of Appeals
    • May 27, 1975
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