Sakraida v. Sakraida

• Decision Date: 11 April 1950
• Citation: 192 Or. 217,217 P.2d 242
• Parties: SAKRAIDA v. SAKRAIDA.
• Court: Oregon Supreme Court

217 P.2d 242

192 Or. 217

SAKRAIDA v. SAKRAIDA.

Supreme Court of Oregon, En Banc.

April 11, 1950

Submitted March 14, 1950.

Coulter, James & Coulter, of Grants Pass, for the motion.

Miller &amp Mikesell, of Grants Pass, contra.

LUSK, Chief Justice.

A decree of divorce in favor of the appellant awarded her the custody of the minor child of the parties. Afterwards, on motion of the respondent, the decree was modified so as to award the custody of the child to him. The appellant duly served and filed notice of appeal from the modifying order and gave an undertaking to pay all damages, costs and disbursements which might be awarded against her on the appeal. The child is in the actual custody of the respondent, and the appellant has now moved this court for an order restoring the custody to her pending the appeal, on the ground that the appeal bond stays the proceedings.

Our statutes relating to the undertaking on appeal are as follows:

Section 10-804 O.C.L.A. 'The undertaking of the appellant shall be given with one or more sureties, to the effect that the appellant will pay all damages, costs, and disbursements which may be awarded against him on the appeal; but such undertaking does not stay the proceedings, unless the undertaking further provides to the effect following:

'(1) If the judgment or decree appealed from be for the recovery of money, or of personal property, or the value thereof, that if the same or any part thereof be affirmed, the appellant will satisfy it so far as affirmed;

'(2) If the judgment or decree appealed from be for the recovery of the possession of real property, for a partition thereof, or the foreclosure of a lien thereon, that during the possession of such property by the appellant he will not commit, or suffer to be committed, any waste thereon, and that if such judgment or decree or any part thereof be affirmed, the appellant will pay the value of the use and occupation of such property, so far as affirmed, from the time of the appeal until the delivery of the possession thereof, not exceeding the sum therein specified, to be ascertained and tried by the court or judge thereof;

'(3) If the decree appealed from require the transfer or delivery of any personal property, unless the things required to be transferred or delivered be brought into court, or placed in the custody of such officer or receiver as the court may appoint, that the appellant will obey the decree of the appellate court. The amount of such undertaking shall be specified therein, and be fixed by the court or judge thereof;

'(4) When the decree appealed from is for the foreclosure of a lien, and also against the person for the amount of the debt secured thereby, the undertaking shall also be to the effect that the appellant will pay any portion of such decree remaining unsatisfied after the sale of the property upon which the lien is foreclosed.

'When the decree appealed from requires the execution of a conveyance or other instrument, execution of the decree is not stayed by the appeal, unless the instrument is executed and deposited with the clerk within the time allowed to file the undertaking, to abide the decree of the appellate court.'

Section 10-805 O.C.L.A. (in part): '* * * The court or judge thereof, in its discretion, may dispense with or limit the further undertaking required by subdivisions 1, 2, 3 and 4 of section 10-804, when the appellant is an executor, administrator trustee, or other person acting in another's right. In cases not provided for in such subdivisions, when an appeal is perfected, with an undertaking for the appeal only proceedings shall be stayed as if the further undertaking thereof had been given.'

Whether the quoted portion of § 10-805 is applicable in any circumstances to a case of this kind is a question left in doubt by our decisions. In Bestel v. Bestel, 153 Or. 100, 44 P.2d 1078, 53 P.2d 525, it was held that on appeal from an order granting the custody of a child the undertaking mentioned in § 10-805 was sufficient in and of itself to stay the proceedings and that no separate order by the court for this purpose was necessary. It was there assumed that an appeal from such an order was governed by § 10-805. The decision was upon authority of In re Vinton, 65 Or. 422, 132 P. 1165. The construction announced in these cases is not in harmony with what was said on the subject in the later case of In re Workman's Estate, 156 Or. 333, 353, 65 P.2d 1395, 68 P.2d 479. In view of the particular facts of this case, however, the present motion can be decided without reference to that apparent conflict.

The facts, as shown by affidavits filed by the parties, are these: The order modifying the decree of divorce and awarding the custody of the child to his father was made on January 16, 1950. On the 19th of January the appellant delivered the child to the Josephine County General Hospital to undergo an operation for a hernia, and on January 30 the respondent obtained the actual custody of the...