State ex rel. Spitzer v. Beveridge

• Decision Date: 16 October 1923
• Citation: 109 Or. 69,218 P. 1112
• Parties: STATE EX REL. SPITZER v. BEVERIDGE, COUNTY CLERK.
• Court: Oregon Supreme Court

218 P. 1112

109 Or. 69

STATE EX REL. SPITZER v. BEVERIDGE, COUNTY CLERK.

Supreme Court of Oregon

October 16, 1923

Department No. 1.

Original proceeding in mandamus by the State of Oregon, on the relation of W. L. Spitzer, to compel J. W. Beveridge, as County Clerk of the County of Multnomah, to issue execution. Writ denied.

John W. Kaste, of Portland, for plaintiff.

Hugh Montgomery, of Portland (Platt & Platt, Montgomery & Fales of Portland, on the brief), for defendant.

McCOURT J.

The relator, hereinafter referred to as "plaintiff," has applied to this court for a writ of mandamus, commanding the defendant, as county clerk of Multnomah county, to forthwith issue execution against the property of the McCormick Steamship Lines, a corporation, and the American Surety Company of New York, a corporation, upon a certain judgment rendered in favor of plaintiff and against the Annette Rolph, a vessel, and the above-named parties, as principal and surety, in an action brought by plaintiff to enforce a lien upon the above-named vessel, as authorized by sections 10281-10297, Or. L. Upon presentation of plaintiff's petition, an alternative writ of mandamus was issued, commanding defendant to forthwith issue the execution demanded by plaintiff, or show cause to this court why he had not done so.

Defendant answered the alternative writ, which answer, together with the facts stated in the alternative writ and admitted by defendant, disclosed in substance: That heretofore plaintiff claiming to have suffered injury to his person by the negligent management of the vessel, Annette Rolph, commenced a suit in the circuit court of the state of Oregon for Multnomah county against that vessel as party defendant, to enforce his demand, as authorized by section 10283, Or. L., and that in said cause a warrant of arrest was duly issued, and that by virtue thereof the sheriff of Multnomah county seized and arrested the vessel mentioned. Thereafter the Rolph Navigation & Coal Company, a corporation, and the McCormick Steamship Lines, a corporation, as principals, and the American Surety Company of New York, a corporation, as surety, entered into an undertaking, as authorized by statute (section 10289, Or L.), the penalty of which was $12,000, conditioned to satisfy the amount which should be adjudged to be due and owing to plaintiff on the determination of the action, together with all costs accruing, and thereupon the Annette Rolph was discharged from further detention by the sheriff. The Rolph Navigation Company, as owners of the vessel, appeared upon behalf of the vessel and answered plaintiff's complaint. The cause being at issue, a hearing was had, after which the circuit court, on June 20, 1923, rendered a decree in favor of plaintiff and against the vessel Annette Rolph, awarding to plaintiff the sum of $3,500, and made an order directed to the sheriff, commanding him to sell such vessel, together with its tackle, apparel, and furniture, to satisfy the judgment and costs of the suit. The court also rendered judgment for the amount of plaintiff's recovery against the principals and surety in the above described undertaking and ordered that execution issue for the amount of judgment and costs in favor of plaintiff, against the principals and surety in said undertaking. On July 12, 1923, the vessel, by name, and the Rolph Navigation & Coal Company, as owner of the vessel, by compliance with the formalities prescribed by statute, jointly perfected an appeal to this court from the above mentioned decree, and in connection therewith the appellants gave an undertaking which under the statute (section 551, Or. L.), stayed proceedings upon the judgment appealed from as to them.

The McCormick Steamship Lines and the American Surety Company, the other parties to the decree, did not appeal, and plaintiff requested defendant, as county clerk, to issue an execution against them upon the judgment from which the vessel and the Rolph Navigation & Coal Company, its owner, had perfected an appeal as aforesaid. The defendant declined to issue the writ of execution demanded by plaintiff upon the ground that the appeal by, and stay of execution in favor of, the vessel and its owner, removed the decree from the jurisdiction of the circuit court, and deprived the clerk of that court of authority to issue execution against the nonappealing parties to the judgment, until the final determination of the cause by the Supreme Court. Plaintiff now moves this court to issue the peremptory writ of mandamus prayed for in his petition herein, claiming that, in view of the facts admitted and alleged by defendant in his answer, the law specially enjoins upon defendant, the duty to issue execution as demanded by plaintiff.

Plaintiff insists that his right to have execution issue against the McCormick Steamship Lines and the American Surety Company is not postponed or suspended by the stay of proceedings pending their appeal obtained by the vessel and her owner, as above stated. Aside from executing the undertaking for discharge of the vessel, the McCormick Steamship Lines did not participate in the litigation above described, and for the purposes of this proceeding that company occupies a position identical with that of its co-obligor, the American Surety Company.

Generally in the case of a judgment against several persons, a stay of execution in favor of one of the defendants, pending an appeal by such defendant, does not suspend the right to issue execution against those who have not appealed from the judgment. Freeman on Judgments (3d Ed.) § 32; Fischer v. Bayer (Or.) 216 P. 1028. The rule just stated, however, has reference to a judgment against persons who appear from the formal pleadings to be parties to the cause. The obligors in the undertaking for discharge of the vessel were not parties to the cause. Spitzer v. The Annette Rolph (Or.) 218 P. 748 (decided October 2, 1923). Nor were they entitled to interfere in any way with...