State ex rel. Tolls v. Tolls

• Decision Date: 13 December 1938
• Citation: 85 P.2d 366,119 A.L.R. 1370,160 Or. 317
• Parties: STATE EX REL. TOLLS <I>v.</I> TOLLS ET AL.
• Court: Oregon Supreme Court

160 Or. 317

85 P.2d 366

119 A.L.R. 1370

STATE EX REL. TOLLSv.

TOLLS ET AL.

Supreme Court of Oregon.

Argued October 13, 1938.

Modified December 13, 1938.

Judgment

1. Though all orders, judgments, and decrees must be entered by a county clerk, only a judgment or decree must be docketed in the judgment docket so as to become a lien on a defendant's realty.

Divorce

2. An order decreeing accrued payments for costs and expenses of divorce suit, for temporary alimony, and for attorney fees, should be declared a final judgment, that the judgment be docketed in the judgment lien docket, and that execution be issued thereon if the judgment be not paid within five days, was not a "judgment" or "decree", but was a mere "personal order", and enforceable only by contempt proceedings.

Divorce

3. The proceedings in a suit for divorce being purely statutory, the powers which the court exercises are the mere creation of statute and not according to the course of the common law.

Divorce

4. The court, in making an allowance under statute for the wife pending a divorce suit, is limited strictly by the terms of the statute.

Divorce

5. An order under statute making provision for wife pending divorce suit is "interlocutory" and may be made only after the commencement of the suit and before decree, but the court may incorporate in the decree a judgment for the amount allowed.

Divorce

6. The allowances for suit money and counsel fees in a divorce suit are in the nature of temporary alimony and governed by the same rules.

Divorce

7. An order for suit money and counsel fees in divorce suit is subject to the supervisory control of the court and may be modified or altered or vacated at the court's discretion, and it does not constitute a judgment or decree in equity for the payment of money, on which an execution may issue, and does not create a lien on the husband's property.

Contempt

8. One may not be held in contempt for refusing to comply with an order which the court had no authority to make.

Clerks of courts

9. A county clerk is a "ministerial officer" and in the performance of his duties as the ministerial officer of the court he is subject to the court's control.

Clerks of courts

10. A court clerk should not question an act of the court when the court is acting judicially.

Contempt

11. Though court's order that order in divorce suit for allowance for maintenance, for costs of maintaing suit, and for attorneys' fees be declared a final judgment and be docketed in court's judgment lien docket and that execution should issue on the judgment if not paid within certain period, was not a valid judgment, but a mere personal order, county clerk had duty to docket it, and was guilty of contempt for refusing to do so, since clerk would have been fully protected by court's order, under which he acted, against damage claims.

Contempt

12. Where county clerk, who refused to docket in judgment lien docket an order which was not a valid judgment, disclaimed any intentional contempt and merely attempted to question the order's validity, a fine of $100 was too severe and would be reduced to $10.

                  See 17 Am. Jur. 455
                

Department 2.

Appeal from Circuit Court, Multnomah County.

JACOB KANZLER, Judge.

Suit for divorce by Ida M. Tolls against Roy E. Tolls, wherein the court made an order directing the defendant to pay to A.A. Bailey, county clerk, certain sums for the costs and expenses of the suit, for temporary alimony, and for attorneys' fees. A.A. Bailey, county clerk, refused to docket the order or to issue execution on a purported judgment entered on the order and the plaintiff applied for an order to show cause why A.A. Bailey, county clerk, should not be punished for contempt. From a judgment holding A.A. Bailey, county clerk, guilty of contempt, he appeals.

MODIFIED.

Frank S. Sever and Clarence A. Potts, Deputy District Attorneys, both of Portland (James R. Bain, District Attorney, of Portland, on the brief), for appellant.

W.O. Sims, of Portland (Sims & Sims, of Portland, on the brief), for respondents.

LUSK, J.

The question for decision is whether the appellant, A.A. Bailey, county clerk and ex-officio clerk of the Circuit Court for Multnomah county, Oregon, may be punished as for a contempt for refusal to docket a purported judgment of the court and to issue execution thereon.

The case arises out of a suit for divorce brought by the relator, Ida M. Tolls, against the defendant, Roy E. Tolls. The plaintiff in that case applied to the court for an allowance pendente lite to enable her to prosecute the suit and for her support and maintenance, and the court, acting under the authority granted by Sec. 6-913, Oregon Code 1930, on May 27, 1937, made an order directing the defendant to pay to the clerk of the court for the benefit of the plaintiff the sum of $30 to apply upon costs and expenses of the suit, the sum of $25 per month temporary alimony, to be paid on June 1, 1937, and on the first day of each month thereafter until the further order of the court, and the sum of $50, attorneys' fees, payable $25 on June 1, 1937, and $25 on July 1, 1937.

On June 10, 1937, the plaintiff in the divorce suit applied to the court for an order for the entry of final judgment for the sum of $80, which was shown to be delinquent under the order of May 27, 1937, and on June 15th the court made an order reciting such delinquency and reading:

"IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the court this 14th day of June, 1937, that said accrued payments amounting to $80.00 be and the same is hereby declared to be a final judgment and plaintiff is hereby given judgment against the defendant for said sum of $80.00 and the clerk is ordered to docket the same in the regular judgment lien docket of this court, and

"IT IS FURTHER ORDERED that the issuance of an execution be and is hereby ordered stayed for a period of five days, to-wit: To and including June 19, 1937, and if said judgment be not paid within said period it is ordered that execution may issue thereon."

Thereafter, it having been made to appear to the court by affidavit that the appellant had refused to obey the foregoing order, the court issued a citation requiring him to show cause why he should not be adjudged in contempt. The appellant answered that he had been advised by the district attorney of Multnomah county that the order was not a valid decree, that he had filed the order and entered it in the court journal, but he refused to docket it because to do so might involve him in a damage action for levying execution upon a void order. He disclaimed any intention to be contemptuous. Upon hearing, the appellant was found guilty of contempt of court and ordered to pay a fine of $100, or that he be committed to the county jail should he fail to pay such fine.

Determination of the question for decision requires, first, an examination of the statutes prescribing the duties of the county clerk.

By section 27-2003, Oregon Code 1930, the county clerk is declared to be ex-officio clerk of the circuit court, and is directed to perform all the duties of such clerk. Among those duties are the following: To enter all judgments in the journal (Sec. 2-1501), and immediately after the entry of judgment to docket the same in the judgment docket (Sec. 2-1601). The same section provides: "From the date of docketing a judgment * * * such judgment shall be a lien upon all the real property of the defendant within the county or counties where the same is docketed, or which he may afterwards acquire therein." The journal is described as "a book wherein the clerk shall enter the proceedings of the court during term time, and such proceedings in vacation as this Code specially directs" (Sec. 7-703).

By section 27-2008, the clerk is required, among other things: "To file all papers delivered to him for that purpose in any action, suit, or proceeding in the court of which he is clerk"; and "to keep the journal of the proceedings of the court at its terms, and under the direction of the court, to enter its orders, judgments, and decrees".

Further pertinent provisions are the following: Sec. 3-101: "The party in whose favor a judgment is given, which requires the payment of money, the delivery of real or personal property, or either of them, may at any time after the entry thereof have a writ of execution issued for its enforcement, as provided in this chapter." Sec. 3-103: "The writ of execution shall be issued by the clerk and directed to the sheriff." The application of these provisions is extended to the enforcement of decrees by Sec. 6-302.

1. From the foregoing statutory provisions it appears that, while all orders, judgments and decrees must be entered by the clerk, only a judgment or decree must be docketed in the judgment docket and thereby become a lien upon the real property of the defendant.

As stated, the circuit court's order of May 27, 1937, for the payment by the defendant in the divorce suit of suit money and temporary alimony, was made under the authority of Sec. 6-913, Oregon Code 1930. There is no other statute granting the circuit court any other or different power in a divorce suit with regard to such allowances.

Section 6-913 reads in part as follows:

"After the commencement of a suit, and before a decree therein, the court or judge thereof, may, in its (or his) discretion, provide by order as follows:

"1. That the husband pay, or secure to be paid, to the clerk of the court, such an amount of money as may be necessary to enable the wife to prosecute or defend the suit, as the case may be, and also such an amount of money as may be necessary to support and maintain the wife during the pendency of the suit".

The record shows that the appellant, pursuant to the provisions of Sec. 27-2008, Oregon Code 1930, filed the order of June 15, 1937, which purported to give a final judgment for the amount then delinquent under the previous order of May 27th,...