Slattery v. Gross

• Decision Date: 22 June 1920
• Citation: Slattery v. Gross, 96 Or. 554, 190 P. 577 (Or. 1920)
• Parties: SLATTERY v. GROSS ET AL.
• Court: Oregon Supreme Court

190 P. 577

96 Or. 554

SLATTERY v. GROSS ET AL.

Supreme Court of Oregon

June 22, 1920

Department 2.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

On rehearing. Original opinion modified.

For former opinion, see 187 P. 300.

H. E. Slattery, of Eugene, for appellant.

A. C. Shaw, of Portland, for cross-appellants.

E. R Bryson and O. H. Foster, of Eugene (Smith & Bryson and L Bilyeu, all of Eugene, on the brief), for respondents.

BENNETT J.

In this case there is a petition for rehearing on behalf of plaintiff, and another in behalf of defendants Gross and McCallum.

The plaintiff claims that she is still not fully protected by the decree outlined in the original opinion, and the defendants Gross and McCallum ask that the decree shall provide that execution issue in favor of the defendants Nancy J. Shelley and J. M. Shelley against the plaintiff, as well as McCallum and Gross, and also that it adjudicate the rights of these latter defendants among themselves. It is claimed that the defendant McCallum has paid $180 more than Gross, and that this should be taken account of, and that the decree should also provide for a judgment over, in case one of these defendants shall prove insolvent, or one shall be compelled to pay more than his share.

Of course the plaintiff is entitled to recompense for any loss she may suffer by reason of the default of the defendants and the decree in this case should provide for a judgment in her favor against each of the defendants, for one-sixth of the market value of the property in question, in case it is sold on foreclosure, as in the decree provided, less any sums which may have been otherwise realized by plaintiff on such one-sixth interest. She would not be entitled to recover the excess paid by her, as that might be much more than the real value of the property. The decree will provide that the circuit court shall retain jurisdiction of the cause, to find the value of the property and the amount of plaintiff's claim remaining unsatisfied, if any, at the end of a foreclosure proceeding, and to enter general judgments in favor of the plaintiff therefor in accordance with foregoing.

We think the pleadings and the record of the appeal are not in such shape that we can give the Shelley defendants a personal decree against the plaintiff, or against the Matlock estate and in that regard the decree of the court below must stand. Neither do w...