State v. McDonald

• Decision Date: 18 July 1911
• Citation: 59 Or. 520,117 P. 281
• Parties: STATE v. McDONALD et al.
• Court: Oregon Supreme Court

117 P. 281

59 Or. 520

STATE v. McDONALD et al.

Supreme Court of Oregon

July 18, 1911

Appeal from Circuit Court, Union County; J.W. Knowles, Judge.

Proceedings by the State against P.A. McDonald, administrator of the estate of John Morrison, deceased, and others. From a judgment for plaintiff, defendants appeal. Affirmed.

See also, 104 P. 967, 106 P. 444.

This is an escheat proceeding, brought under section 7351, L.O.L involving certain real and personal property in Union county Or., owned, at the time of his death, by John Morrison of that county, who died intestate. The action, pursuant to the Governor's direction, was instituted on behalf of the state by F.S. Ivanhoe, attorney for the Tenth judicial district. The amended information was filed August 13, 1907 wherein it is alleged that the intestate left no heirs children, or widow, or any kindred capable of inheriting his property; that William Morrison, Lawrence Morrison, and Euphemia Krohn, T.M. Rankin, R.M. Rankin, George Rankin, Earl Rankin, Minnie Goodman, and Cora Joel claim to be the owners of the property, but that none of them are entitled thereto; that the whole thereof has escheated to the state of Oregon.

The defendants William Morrison, Lawrence Morrison, and Euphemia Krohn claim to be the brothers and sister and the heirs of John Morrison, deceased, and as such claim to be the owners of three-fourths of the property, and T.M. Rankin, R.M. Rankin, George Rankin, Earl Rankin, Minnie Goodman, and Cora Joel, as the children of Jeanette Rankin (née Morrison), deceased, an alleged sister of the decedent, claim to inherit the remaining one-fourth. Issues were joined, and the cause first tried before a jury, when a verdict was rendered in favor of plaintiff, and from a judgment thereon defendants appealed to this court. Upon the cause being remanded to the trial court, it was again tried before a jury and a second verdict rendered in favor of plaintiff, a judgment thereon rendered, and defendants appeal. At the first trial the case was dismissed as to P.A. McDonald and J.B. Friswold. For a full statement of the issues and former opinions in the case, see, under same title, 55 Or. 419, 448, 103 P. 512; 104 P. 967.

Turner Oliver, for appellants.

F.S. Ivanhoe, Dist. Atty., and C.E. Cochran, Special Counsel (Cochran & Cochran, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

Numerous errors are assigned by the defendants, many of which were before this court upon the former appeal, and will be passed without consideration, as the former decisions upon the same facts have become the law of the case. Stager v. Troy Laundry Co., 41 Or. 141, 68 P. 405.

It appears that the intestate, John Morrison, was born about January 13, 1833, at Alva, Scotland, where he lived with Ann

Morrison, the mother of Margaret Shaw, a witness herein, until 16 or 17 years of age, when he came to America; that, until he was about 22 years of age, he resided with the family of James Morrison, at Brookfield, Ohio, when he came to the Pacific Coast; that about 1865 he settled in the Grande Ronde Valley, Union county, and died, without having been married, in Portland, Or., January 31, 1905.

It is asserted on the part of plaintiff that decedent was the illegitimate son of James Morrison and one Catherine France; that Catherine France afterwards married one James Lockhart and settled in New Zealand, where she died in 1879; while defendants contend that decedent was the son of James Morrison and Jeanette Marshall, who after his birth intermarried, about the year 1837, thereby, by virtue of sections 7351, 7352, L. O.L., legitimatizing such issue; that defendants William Morrison, Lawrence Morrison, and Euphemia Krohn are the brothers and sister of the whole blood to the intestate, and that therefore they and T.M. Rankin, R.M. Rankin, Earl Rankin, George Rankin, Minnie Goodman, and Cora Joel, the children of Jeanette Rankin (née Morrison), deceased, an alleged sister of the whole blood of said intestate, are his lawful heirs.

At the trial of the cause, objection to the reading of the deposition of Mrs. Margaret Shaw was made by counsel for the defense, for the reason that the infirmity of the witness, prevailing on May 19, 1908, when the deposition was taken, had not been shown to continue to the time of the trial. Section 851, L. O.L., provides that when a deposition is taken under subdivision 4 of section 837, "before the same can be used, proof shall be made that the witness *** still continues *** infirm." Carter v. Wakeman, 45 Or. 427, 78 P. 362. The testimony of Mrs. Shaw's attending physician, as well as that of another competent physician, taken at the time of the last trial of the cause, clearly shows that she had been receiving medical attention for about six weeks, and that both physicians saw Mrs. Shaw the morning prior to the commencement of the trial; that she was between 70 and 75 years of age, very nervous, and easily excited; that she was unable to walk up the stairs, and it was believed probable that if subjected to an examination on the witness stand she would undergo a collapse and suffer therefrom. There is also evidence tending to show that at and prior to the time of the first trial of the case she was infirm and suffering from acute disorders.

As held by this court upon a former hearing of the cause, this is a matter which necessarily would be left to the sound discretion of the trial court. Objection was also made that Grace Landors, the commissioner before whom this deposition was taken, had served for a long time as a stenographer in the office of one of the attorneys for plaintiff. The motion does not state when she served as such stenographer, and the affidavit in support thereof is silent upon this question, and it is not shown that the commissioner was incompetent to act as such. Moreover, while counsel for the defense made objection to the taking of this deposition, no objection on this ground was made at the time, nor subsequently, until seven months afterward. We find no error in the admission of the deposition.

A motion, supported by affidavit, was filed to suppress, and objection was made to the reading of, the deposition of John Richie. From a careful examination of the affidavit in support of the motion, many of the details of which are contradicted by counter affidavits, and looking solely to the substance thereof, it appears that the objection was made upon the ground that Thomas Arnot, Esq., one of his majesty's justices of the peace for the county of Clackmannan, Scotland, before whom the deposition was taken had, at the instance of John Reid, a solicitor, previously taken the affidavit of John Richie, which appears on file herein, and is of similar purport to that of this deposition. It does not...