State ex rel. Perry v. Mount

• Decision Date: 29 April 1932
• Citation: 139 Or. 694,10 P.2d 606
• Parties: STATE ex rel. PERRY et al. v. MOUNT et al.
• Court: Oregon Supreme Court

10 P.2d 606

139 Or. 694

STATE ex rel. PERRY et al. v. MOUNT et al.

Supreme Court of Oregon

April 29, 1932

En Banc.

Appeal From Circuit Court, Baker County; C. H. McColloch, Judge.

Proceedings for contempt by the State, on the relation of Fred Perry and another, against O. B. Mount and another. From the judgment in favor of named defendant, relators appeal.

Appeal dismissed.

McColloch & Brown, of Baker, for the motion.

Hallock Donald & Banta, of Baker, opposed.

PER CURIAM.

Respondent moves to dismiss the appeal upon the following grounds First, that the notice of appeal was not signed by the plaintiff, state of Oregon, or by the district attorney second, that no notice of appeal was served upon the state of Oregon, plaintiff herein, and a necessary party hereto third, that no notice of appeal was served upon M. M. Grogan, one of the defendants herein, and a necessary adverse party to the appeal. The motion was founded upon the files and the records, particularly upon the bill of exceptions.

In regard to the objection of defendant that the notice of appeal was not signed by the district attorney, section 8-504, Oregon Code 1930, provides in cases of contempt not committed in the immediate view and presence of the court: "The affidavit shall be sufficient if it set forth the facts constituting the contempt, and need not contain recitals of matters already appearing in the record of any action, suit or proceeding in which the person charged with contempt has been personally served with process. It shall be sufficient if the name of the state of Oregon be added as a party plaintiff in the affidavit and proceedings following it, without any action of the district attorney, and without any proceedings for adding such party." See Statute ex rel. v. Fendall, 135 Or. 142, 295 P. 194.

We think that the provision rendering it unnecessary for the district attorney to take any action in the proceeding applies on an appeal, and that it is not required that he sign the notice of appeal or the affidavit.

It appears that an action of forcible entry and detainer was brought by the relators in the justice court in Baker county against M. M. Grogan for the possession of certain premises. The defendant Grogan had a real or claimed equitable defense, and desired affirmative equitable relief, which could not be set up in his answer in the justice court, so he commenced a suit in equity against the relators and their predecessors in interest, Mrs. Richardson et al., in the circuit court of Baker county, and filed his complaint in which it was claimed that Grogan and Mrs. Richardson, the owner of the premises, at the time of entering into the agreement, had entered into a verbal agreement for the leasing of the premises in controversy to Grogan for a term of three years, at the annual rental of $1,000 a year. If the lease was held valid, Grogan would be required to pay $1,000 as rental for a year, and the court ordered him to deposit that amount for that purpose.

In order to show the interest of the parties, we refer to the record in part which shows that on November 29, 1930, after the order of the court was made requiring the deposit, and, as found by the trial court, without complying with the order of November 10, 1930, plaintiff M. M. Grogan, acting by attorney O. B. Mount, filed a supplemental complaint in the equity suit. At the same time the defendant Mount tendered his personal check for $1,000, mentioned in the supplemental complaint, to the clerk of the circuit court, which check upon its face bore the following language: "Tender in the case of M. M. Grogan vs. Mary Richardson, et al., in the case pending in the Circuit Court of the State of Oregon for Baker County, and this tender is made in accordance with the supplemental company (complaint) filed in this cause herein."

The supplemental complaint referred to in the indorsement on the check stated in part as follows: "That this plaintiff tenders into court herewith the sum of One Thousand Dollars, to cover the amount of the annual rental, for the premises described in plaintiff's complaint, on file herein beginning March 1, 1930, and ending March 31, 1933, upon condition that the lease described in plaintiff's complaint may be specifically enforced in the annual rental of one thousand dollars for the term of the lease described in said complaint, and becoming due in November of each year, of which the rental for the first year is now due, and tendered herewith, but in the event that said lease may not be specifically enforced then plaintiff hereby makes claim for one thousand dollars to apply upon the damages which plaintiff sustained by reason of having been induced and he was induced at the instance of the defendants to operate said premises for the term described in plaintiff's complaint, and because thereof made the improvements described in plaintiff's complaint, not knowing anything to the contrary," etc.

It is claimed that the tender was not in accordance with the order of the court, but was conditional, as provided in the supplemental complaint. Defendant Mount made the deposit for Grogan, his client, and afterwards drew down the deposit from the clerk, and hence the proceeding for contempt versus both Mount and his client Grogan.

The contempt proceedings were dismissed as to defendant Grogan. After hearing, the court found in favor of defendant Mount, holding that the supplemental complaint being stricken left the order of deposit...