Ranzau v. Davis

• Decision Date: 27 June 1916
• Citation: 85 Or. 26,158 P. 279
• Parties: RANZAU v. DAVIS ET AL.
• Court: Oregon Supreme Court

158 P. 279

85 Or. 26

RANZAU v. DAVIS ET AL.

Supreme Court of Oregon

June 27, 1916

In Banc.

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by Arthur J. Ranzau, by Dorothea V. Ranzau, his guardian ad litem, against J. C. Davis and William Esch, Sheriff of Marion County, Or. From a decree dismissing the suit and ordering a sale of property on execution, plaintiff appealed and defendants move to dismiss. Motion denied.

Upon motion to dismiss appeal. The defendant Davis obtained a judgment in an action for the recovery of money against John P. Ranzau and Dorothea V. Ranzau, his wife, and thereafter had an execution issue thereon with directions to the sheriff to levy upon and sell certain real property in satisfaction of such judgment. The plaintiff herein, who is the minor son of the defendants in the action at law, then commenced this suit to enjoin the levy and sale of the real property upon the ground that he is the owner thereof. A trial was had in the lower court, and from a decree dismissing the suit and ordering a sale of the property upon execution the plaintiff has appealed to this court, and defendants move to dismiss the appeal.

Chas E. Lenon, of Portland, and Chas. L. McNary, of Salem, for appellant. Walter C. Winslow, of Salem, for respondents.

BENSON J. (after stating the facts as above).

The motion is based upon two contentions: (1) That the sureties upon the undertaking on appeal are insufficient; and (2) that the appellant did not file a supersedeas bond, and that the sheriff has already sold the land upon execution, and such sale has been duly confirmed, and that therefore there is no substantial controversy upon which this court is called to pass.

Considering these contentions in the order indicated, we may say that there is no record before us upon which to base any conclusion as to the sufficiency of the sureties, and, if there were, counsel has failed to call our attention to any statutory provision authorizing us to pass upon such question, nor have we in our investigation been able to discover any. The right of appeal is purely statutory, and in the absence of legislative authority we must decline to consider the matter.

The second contention is also without merit. The suit raises the issue as to whether, under the facts alleged, the plaintiff is the owner of the property, and whether, in the event it is found to be his, it can be subjected...