State v. McDonald

• Citation: 63 Or. 467,128 P. 835
• Parties: STATE v. McDONALD et al.
• Decision Date: 17 December 1912
• Court: Oregon Supreme Court

128 P. 835

63 Or. 467

STATE v. McDONALD et al.

Supreme Court of Oregon

December 17, 1912

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

Action by the State against P.A. McDonald, administrator of John Morrison, deceased, and others, to recover property as upon an escheat. Judgment was entered for the State, and the State appeals from an order allowing fees of special counsel for the State. Appeal dismissed.

This was originally a proceeding begun to recover for the use of the state of Oregon certain property in Union county as upon an escheat. The state having obtained judgment, the case was brought here on appeal and reversed in an opinion reported at 55 Or. 419, 103 P. 512, 104 P. 967, 106 P. 444. The state having again prevailed in a second trial in the circuit court, the case was again appealed and the decision below affirmed. 59 Or. 520, 117 P. 381. It seems that Charles E and George T. Cochran, composing the firm of Cochran &amp Cochran, had been employed by the Governor of the state as special counsel. When the case was finally remanded to the circuit court, the district attorney with Cochran & Cochran filed a motion to direct the sale of the real property involved, and with the motion the firm filed an affidavit setting out in considerable detail the services they had performed, together with affidavits of many attorneys from different parts of the state giving their opinions as to what would be a reasonable attorney's fee to be allowed to the special counsel for those services; also accompanying the motion was an affidavit of C.E. Cochran, stating the amount of costs in the circuit and Supreme Courts and certain expenses incurred in the proceedings on behalf of the state of Oregon. N. Schoonover also filed an affidavit giving in detail what constituted his expenses for his trip to Scotland and return in search of evidence for the state at the instance of the district attorney and special counsel. The sheriff of Union county also filed a statement of taxes charged against the property for several years, amounting in all to $1,311.04. The original defendants in the action by their attorney, who also styled himself amicus curiae interposed a demurrer and various motions and objections to the allowance of the amounts claimed for attorney's fees and expenses, all of which forms of opposition were determined against the defendants. On February 6, 1912, the circuit court entered an order the substance of which was to allow the fees of associate counsel at $7,500 and the other expenses at the amounts claimed and to direct the sale of the escheated real property and the application of the proceeds of sale to the payment of the sums of money allowed by the order, the balance to be paid to the State Treasurer. On March 7, 1912, Oswald West, Governor of the state of Oregon by A.M. Crawford, Attorney General, moved the court to set aside the order last above quoted so far as the same relates to the allowance of attorney's fees, but this motion was overruled. Afterwards, on August 3, 1912, there was filed in the circuit court a notice of appeal, which, with the acceptance of service annexed and omitting the title of the action, reads as follows:

"Notice is hereby given that the state of Oregon appeals to the Supreme Court of the state of Oregon from the judgment and decree of the circuit court of the state of Oregon for the county of Union in the above-entitled cause made and entered on February 6, 1912, fixing and allowing $7500 as attorneys fees to be paid to Cochran & Cochran and $75 to be paid to Dr. Myers as expert witness fees and $50 to be paid to Dr. Hall as expert witness fees and $341.30 to be paid to Cochran & Cochran for costs in the circuit court and $156.99 to be paid to Cochran & Cochran as costs in the Supreme Court and $563.05 to be paid to Nelson Schoonover, and the state of Oregon appeals from the whole of said decision and decree and from every part thereof. [ Signed.] A.M. Crawford, Attorney General for Oregon. Turner Oliver, Special Counsel appointed by the Governor.

"We hereby accept service of the foregoing notice of appeal and acknowledge receipt of a copy thereof on this August 1, 1912. [ Signed.] George T. Cochran, Special Counsel for the State of Oregon in the Above-Entitled Cause, F.S. Ivanhoe, District Attorney."

The matter is now presented to this court on the motion of George T. Cochran to dismiss the appeal on sundry grounds, of which the following are noticed: (1) "That the notice of appeal in this action was not served upon all the adverse parties, to wit, the said notice was not served upon Charles E. Cochran, one of the parties interested in attorney's fees allowed by the trial...