Reed v. Hollister

• Decision Date: 30 January 1923
• Citation: 106 Or. 407,212 P. 367
• Parties: REED v. HOLLISTER.
• Court: Oregon Supreme Court

212 P. 367

106 Or. 407

REED v. HOLLISTER.

Supreme Court of Oregon

January 30, 1923

In Banc.

Appeal from Circuit Court, Coos County; J. S. Coke, Judge.

Action by Edwin Reed, administrator of the estate of Frances S Furry, against Frederick Hollister. Judgment for plaintiff and defendant appeals. Affirmed.

This is an action on a final judgment recovered against the defendant in the superior court of San Diego county, Cal., which judgment was affirmed by the District Court of Appeals of that state in Reed v. Hollister, 44 Cal.App. 533 186 P. 819. Plaintiff then commenced action on the judgment in the circuit court of Coos county, Or. The case is here for the second time upon appeal.

Upon the first appeal the defendant had filed an answer in which he set forth certain affirmative allegations as a defense to plaintiff's cause of action on the judgment, but the answer contained no denial of any of the allegations of the complaint. Thereupon, in the court below, the plaintiff and the defendant each moved for judgment on the pleadings consisting of said complaint and answer. The court sustained the motion of the defendant and entered a judgment against the plaintiff from which the plaintiff appealed. This court in Reed v. Hollister, 95 Or. 656, 188 P. 170, reversed the judgment and remanded the cause. The defendant then filed an amended answer in the lower court, which is an exact copy of the original answer, except it contains certain allegations hereinafter set forth in addition to those contained in the original answer. In his amended answer, as in the original, the defendant failed to deny any of the allegations of the complaint, thereby admitting all of them. All of the facts upon which the decision of this court was rendered upon the former appeal are set forth in the opinion then rendered. The only additional facts are those contained in the following averments of the amended answer, which alone, as stated, were added to those contained in the original answer. These averments are as follows:

"There was no testimony offered or received in any way contradicting the testimony of Mr. Hollister in regard to his settlement. During the progress of the trial the plaintiff introduced in evidence a copy of the receipt given by Frederick Hollister to the Central Trust Company of New York for $39,014.57 as his portion of the trust fund in question, and said receipt contained the following:

" 'On account of a certain trust fund created by and under paragraph fourth of the last will and testament of William Henry Hollister, duly admitted to probate in the Surrogate's Court of the County of New York on the 1st day of February, 1912, to the principal of which trust fund I became entitled on the death of Philoclea A. Hollister through a power of appointment in said Philoclea A. Hollister created by said last will and testament and exercised by said Philoclea A. Hollister by her last will and testament.'

"Plaintiff also introduced in evidence a copy of the statement of the account of the Central Trust Company of New York, with reference to the said trust fund, as follows:

Principal ............................................ $40,000 00 Interest to date ....................................... 2,823 20 $42,823 20 Paid as follows: Transfer tax .......................................... $ 400 00 Trustee's commission ..................................... 685 55 Joline-Larkin & Rathbone ................................. 100 00 Jno. Davis, service ...................................... 950 00 F. Hollister & Geo. S. Hollister as executors of will of P. A. Hollister ...................................... 1,673 08 Fred Hollister personally ............................. 39,014 57 $42,823 20

"It was admitted at the trial that Philoclea A. Hollister died in Oregon and that her estate was being probated in the county court of Coos county, Or., at the time of the said trial, and that said estate was not settled. During his cross-examination the defendant, Frederick Hollister, introduced in evidence a copy of the proceedings in the Surrogate Court of New York, showing that the will of Philoclea A. Hollister was there admitted to probate, and that George Stanton Hollister and Frederick Hollister were there appointed executors, and the defendant introduced a copy of the proceedings of the Surrogate Court of New York, showing that proceedings upon the final settlement of the estate of William H. Hollister occurred after the will of Philoclea A. Hollister had been admitted to probate and said George Stanton Hollister and Frederick Hollister were served with notice and appeared as executors of the last will and testament of Philoclea A. Hollister, by attorney, at said final settlement, and said final settlement included the following statement:

                            February 27, 1913. Legacies paid--Central Trust Company
                            of New York as trustee for Philoclea A. Hollister and
                            others .................
                          
                            $40,000 00
                          
                            Income thereon
                            .......................................................
                          
                            2,300 70
                          
                            
                          
                            __________
                          
                            Total
                            ...........................................................
                          
                            $42,300 70
                          
                            Paid October 17, 1912, on account
                            ..................................
                          
                            $ 1,200 00
                          
                            Paid balance February 18, 1913
                            ......................................
                          
                             41,100 70
                          
                            
                          
                            __________
                          
                            Total
                            ...........................................................
                          
                            $42,300 70
                          
                

"That the above-named Philoclea A. Hollister died on or about October 3, 1912, leaving a last will and testament which has been duly admitted to probate in the state of Oregon, and letters testamentary issued to Frederick Hollister and George Stanton Hollister.

"That proceedings were instituted in the Surrogate's Court of the County of New York, State of New York, for the appointment of ancillary executors, and said Frederick Hollister and George Stanton Hollister have been duly appointed ancillary executors by the Surrogate of the County of New York. That the residence of each of said executors is North Bend, Or."

We have set forth these additional allegations of defendant's amended answer, not because we deem them material, but in order that all of the facts now before us can be ascertained from the above statement and an examination of the opinion upon the former appeal.

Upon the filing of the amended answer the plaintiff moved for a judgment on the pleadings. The court awarded the plaintiff a judgment for the amount of the judgment sued on, and defendant has appealed therefrom.

Austin S. Hammond, of North Bend, for appellant.

John M. Williams, of Eugene (Williams & Bean, of Eugene, on the brief), for respondent.

RAND, J. (after stating the facts as above).

It was held by this court upon the former appeal of this cause that the complaint states a good cause of action on the judgment. This complaint has not been amended or changed since the former appeal. The decision of this court upon this point is the law of the case. The amended answer, which consists of affirmative allegations only, and contains no denial of any fact alleged in the complaint, admits all of the material facts alleged; and there is no allegation in the answer that the judgment has been paid. Therefore the sole question presented upon this appeal is whether the facts alleged in the amended answer constitute a defense to plaintiff's cause of action on the judgment.

It appears from the allegations of the complaint and answer, none of which are denied, that the defendant was a resident of the state of Oregon; that, while temporarily in the state of California, he was personally served with summons in the action in which the judgment was rendered. By voluntarily going to the state of California he submitted himself to the jurisdiction of its courts, and, when actually served with process there, the court acquired jurisdiction over his person, and a judgment rendered against him is as binding on him in this state as it is in the state where it was rendered. See Freeman on Judgments (3d Ed.) § 566. After being served with process in that state, the defendant appeared in the action and answered to the merits and was personally present on the trial. He thereby submitted himself in all respects to the jurisdiction of the court in that action.

The action in which the plaintiff secured the judgment in question was what, in this state, would be a suit for an accounting. The subject of the determination there sought was to ascertain how much, if anything, the defendant owed the plaintiff, and to obtain a pecuniary judgment therefor. The judgment entered was a personal judgment requiring the defendant to pay a specific sum of money, and was strictly a judgment in personam.

As the defendant was actually served with process within the state of California, the court in that action acquired jurisdiction over the defendant and over the subject-matter of the action. Jurisdiction is said to be the right to adjudicate concerning the subject-matter in a given case, and includes not only the power to hear and determine, but also the power to render the particular judgment in the particular case, as well as the power to enforce the judgment when rendered, and jurisdiction of the subject-matter means jurisdiction, not only over the particular case, but over the class of cases to which a particular case belongs. 7 R. C. L. p. 1029.

The superior court of...