Schmidt v. Oregon Gold Mining Co.

• Decision Date: 22 July 1895
• Citation: 40 P. 1014,28 Or. 9
• Parties: SCHMIDT v. OREGON GOLD-MINING CO.
• Court: Oregon Supreme Court

40 P. 1014

28 Or. 9

SCHMIDT v. OREGON GOLD-MINING CO.

Supreme Court of Oregon

July 22, 1895

On rehearing. Denied.

For former opinion, see 40 P. 406.

WOLVERTON, J.

A motion for rehearing having been filed in this case, and with it a vigorous and very able brief by Messrs. Dolph, Nixon &amp Dolph, of counsel for appellants, we have been impelled to review with much care and pains our former opinion, but with the same result. When the former opinion was rendered we had some misgivings as to whether we were right in holding that the provisions of the decree concerning attorney's, referee's, and stenographer's fees were not so entirely without the scope of the pleadings as to render them void, simply because we had been cited to no adjudicated cases that seemed to bear directly upon the question, and were unable to find any at the time that were in point, but believed the opinion to be founded upon sound principles of law. Further research has confirmed us in this view. The authorities will be cited and discussed later on.

Counsel do not controvert the soundness of the decision in Rader v. Barr, 22 Or. 495, 29 P. 889, but contend that it has no application to the case at bar, and assign as the sole ground for this contention that the provisions of the decree to which they take exceptions are without the scope of the pleadings. But, conceding the premises to be true, non constat that the conclusion contended for would follow. Let us examine the premises and determine their effect in a case of this nature. As a general proposition, all provisions of a decree outside of the issues raised by the pleadings are void, but this cannot be predicated of a consent decree. All the authorities cited by counsel support the general proposition, but are not applicable to consent decrees. Nor is any allusion made in these authorities to such decrees except in Jones v. Davenport, 45 N.J.Eq. 77, 17 A 570. This was a suit to set aside a deed to certain real property, as fraudulent and void as against creditors. The complaint also contained a general allegation that a certain 100 shares of bank stock had been transferred in fraud of the creditors. The lower court by its decree set aside the deed but refused to disturb the transfer of bank stock for the reason that the allegations of the complaint were insufficient to show a fraudulent disposition of such stock. Afterwards an amended decree was entered under the same pleadings by consent of the parties, as of the date of the original, decreeing that the transfer of the stock was also fraudulent. Subsequently, however, upon application to the same court, the decree, as so amended, was declared to have been irregularly entered, and for that reason set aside. Upon appeal to the supreme court, Van Fleet, V.C., said of this proceeding: "There can be no doubt that that decree was an absolute nullity. The principle is authoritatively settled that a decree or judgment on a matter outside of the issue raised by the pleadings is a nullity, and is nowhere entitled to the least respect as a judicial sentence." But a consent decree is not in a strict legal sense a "judicial sentence." "It is," says Mr Gibson, in his excellent treatise entitled "Suits in Chancery" (section 558), "in the nature of a solemn contract, and is in effect an admission by the parties that the decree is a just determination of their rights upon the real facts of the case, had such been proved. As a result, such a decree is so binding as to be absolutely conclusive upon the consenting parties, and it can neither be amended or in any way varied without a like consent, nor can it be reheard, appealed from or reviewed upon a writ of error. The one only way in which it can be attacked or impeached is by an original bill alleging fraud in securing the consent." Mr. Beach, in his Modern Equity Practice (section 792), says: "Parties to a suit have the right to agree to anything they please in reference to the subject-matter of their litigation, and the court, when applied to, will ordinarily give effect to their agreement, if it comes within the general scope of the case made by the pleadings." See, also, Railroad v. Ketchum, 101 U.S. 297 . In Schermerhorn v. Mahaffie, 34 Kan. 108, 8 P. 199, it was held that a decree rendered by consent of the parties was not void as between themselves because it did not give to each just what the petition called for, and what ought as a matter of right to have been given to each of them. Chancellor Walworth, in Bank v. Widner, 11 Paige, 533, says: "An agreement to refer a suit pending to an arbitrator, and that a judgment shall be entered in the cause in conformity with his decision, will justify the entry of a judgment accordingly, which judgment will be binding upon the parties, as a judgment by consent." Chief Justice Waite, in Railroad v. Ketchum, supra, after giving utterance to the language quoted above from Beach's Modern Equity Practice, says: "It is within the power of the parties to this suit to agree that a decree might be entered for a sale of the mortgaged property without any specific finding of the amount due on account of the mortgage debt, or without giving a day of payment. It was also competent for them to agree that, if the the property was bought at the sale by or for the bondholders, payment of the purchase money might be made by a surrender of the bonds. *** All these were matters about which the parties might properly agree, and, having agreed, it does not lie with them to complain of what the court has done to give effect to their agreement." Fletcher v. Holmes, 25 Ind. 458, was a case wherein suit was brought to foreclose a mortgage in which neither the mortgage nor the complaint to foreclose showed any right to a personal decree against the defendant, but he appeared and with his consent one was rendered. Regarding such decree the court says: "It cannot be doubted that, without May's consent, such a judgment against him, upon that complaint, would not have been warranted. ...