State ex rel. Hammer v. Downing

• Court: Oregon Supreme Court
• Writing for the Court: WOLVERTON, C.J. (after stating the facts).
• Citation: State ex rel. Hammer v. Downing, 40 Or. 309, 58 P. 863 (Or. 1899)
• Decision Date: 06 November 1899
• Parties: STATE ex rel. HAMMER v. DOWNING.

58 P. 863

40 Or. 309

STATE ex rel. HAMMER v. DOWNING.

Supreme Court of Oregon

November 6, 1899

Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr. Judge.

Action by the state of Oregon, on the relation of Thomas J. Hammer against F.O. Downing. From a judgment for plaintiff defendant appealed. Plaintiff files a motion to dismiss appeal. Denied.

On October 7, 1897, the relator, Thomas J. Hammer, obtained a judgment in the circuit court of the state of Oregon for Multnomah county against the appellant, F.O. Downing, and one F.H. Hopkins, as partners under the firm name of Downing Hopkins & Co., for $7,817.50, with accruing interest and costs. On April 4, 1898, it appearing in a proceeding supplemental to execution that Downing had $10,000 in his possession and under his control liable to execution upon said judgment, which he unjustly refused to apply towards the payment of the same, the court made an order directing him to pay over a sufficient amount thereof to satisfy said judgment, from which order and judgment he appealed to this court, but proceedings for their enforcement were not thereby stayed. Subsequently, on June 30, 1898, a proceeding for contempt of court in refusing to comply with the said order of April 4, 1898, was instituted against him, wherein the court made findings, and entered thereupon the following order and judgment, viz: "It is therefore ordered and adjudged by the court that the defendant, F.O. Downing, is guilty of contempt of this court, as charged in said affidavit of Thomas J. Hammer, the relator herein, and is now in contempt of this court for disobedience to its said order of the 4th day of April, A.D.1898, and that it is in his power to comply therewith; and that said defendant, F.O. Downing, pay a fine of twenty-five dollars and costs of this proceeding, and be imprisoned in the county jail of Multnomah county, state of Oregon, until he shall have complied with said order of the 4th day of April, A.D. 1898, by applying a sufficient portion of said sum of ten thousand dollars upon said judgment in favor of said Thomas J. Hammer, mentioned in said order, to satisfy the same, namely, the sum of $7,817.50, with interest thereon from July 15, 1897, at the rate of eight per cent. per annum, and until said fine is paid. And on the motion of said defendant, F.O. Downing, it is further ordered that all further proceedings herein be stayed until the further order of the court, and that said defendant have sixty days to file a bill of exceptions." The defendant, Downing, having appealed from the judgment without attempting to have the proceedings stayed, the relator moves to dismiss the appeal for the reason that the order or judgment is not final, and therefore not appealable.

Woodward & Palmer, for appellant.

Coovert & Stapleton and Watson & Beekman, for respondent.

WOLVERTON C.J. (after stating the facts).

It is maintained by the relator that the...