U.S. Fidelity & Guaranty Co. v. Martin
| Decision Date | 29 June 1915 |
| Citation | 149 P. 1023,77 Or. 369 |
| Parties | UNITED STATES FIDELITY & GUARANTY CO. v. MARTIN ET AL. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; Wm. N. Gatens, Judge.
Action by the United States Fidelity & Guaranty Company against G F. Martin and another. From a judgment for defendants plaintiff appeals. Reversed and remanded, with directions.
The plaintiff, a Maryland corporation authorized to operate in Oregon, avers substantially that the defendants applied to it to furnish a redelivery bond to secure the release of property attached in an action in the superior court of Clarke county, Wash., wherein E. M. Meach was plaintiff and C. Schley, trading as Vancouver Bill Posting Company, and S S. S. Realty Company, was defendant. It furnished the bond and at the time, as part of the same transaction, took from the defendants here an indemnity bond in the sum of $1,550 which recited the terms of the redelivery undertaking and stated its own conditions as follows:
The complaint further narrates the recovery of judgment in the Washington action on September 11, 1911, in favor of the plaintiff and against the defendant in the sum of $737.26; that the defendants refused to pay it after repeated demands by the plaintiff to that end, in consequence of which the plaintiff was compelled to and did pay the same on July 3, 1912, in principal, interest, and costs, the full amount of $772.15. Further demands upon the defendants for reimbursement are alleged, and it is said that by reason of the default of the defendants the plaintiff has been compelled to prosecute the action at an additional expense of $75 for attorney's fees. The primary pleading concludes with a demand for judgment for $847.15, with interest on the amount paid in satisfaction of the Washington judgment from the date of payment. Denying most of the allegations of the complaint except as afterwards qualified, only the defendant Sheppard answered. He admitted the execution and delivery of both the redelivery bond and the indemnity bond as stated in the complaint. He says that, after the release of the attached property by virtue of the bond executed by the plaintiff, the parties to the Washington action made a complete settlement of the same as evidenced by the following writing:
He charges that afterwards the plaintiff in that action refused to dismiss the same, but brought it on for trial and secured the judgment already mentioned in violation of his agreement. The defendant states that after the rendition of the judgment and demand made upon the plaintiff here for its liquidation, and it had called upon him to pay the same, he informed the plaintiff of the agreement and that said judgment had been wrongfully and unlawfully obtained in violation thereof; that the plaintiff there was not entitled to the judgment in question, and that it was illegal and void and of no force and effect; that he notified the plaintiff on those grounds that it was his intention to institute a suit in the name of the plaintiff corporation for the purpose of having the judgment set aside. He further says that:
He "at that time presented to this plaintiff a petition prepared by counsel who had been employed by this answering defendant setting up facts which showed fraud upon the part of the said E. M. Meach, and facts sufficient to have warranted said court in setting aside said judgment against the said C. Schley and this plaintiff and facts sufficient to properly advise this plaintiff of the truth of all of the statements contained in said complaint, and requested this plaintiff, through its proper officers, to cause said complaint to be verified. * * *"
He also avers that:
"If said suit had been permitted to have been instituted and carried on, the same would have been successful, and that said judgment would have been set aside and held for naught, and this plaintiff would not have been liable for or been compelled to pay said judgment or any part thereof."
In brief, the answer does not complain of anything which the plaintiff here did or refused to do in the Washington action; but the essence of the affirmative answer is that the plaintiff declined to allow the use of its name by the defendant Sheppard in the prosecution of a new and independent suit to set aside the Washington judgment which it was compelled to pay. The reply traversed the allegations of the answer in material particulars and averred, in substance, that the laws of Washington provide for a new trial of an action as against a judgment obtained by fraud or surprise in the manner alleged by the answer and for an appeal within three months from the final decision of an action, and that neither the defendant therein nor the defendants here took any steps to avail themselves of the prescribed procedure in that respect in that state; that, after the time for taking such appeal had elapsed, the present defendants instituted an original suit in their own name in the superior court of Clarke county, Wash., for the purpose of setting aside the judgment on the grounds which the defendant Sheppard here alleges; but that the same was decided adversely to them and that it was not until execution issued upon the judgment that the plaintiff here had paid the same. The circuit court heard this case without a jury, and after keeping it under advisement for some months adopted findings of fact and conclusions of law submitted to it by the plaintiff. These findings and conclusions are a substantial copy of the material allegations of the answer omitting charges of fraud and collusion on the part of plaintiff which were practically abandoned at the trial. The plaintiff propounded findings in its favor which were rejected by the court. A judgment was rendered for the defendants, and the plaintiff appeals.
R. C. Nelson, of Portland (Beach, Simon & Nelson, of Portland, on the brief), for appellant. R. J. Brock, of Portland (Sheppard & Brock, of Portland, on the brief), for respondents.
BURNETT, J. (after stating the facts as above).
If we should concede that the defendant had a right to demand of the plaintiff that it commence in its own name an independent suit to set aside the judgment which it afterwards paid, still the answer of the defendant describing the petition he presented only states a conclusion of law. On the hypothesis that the plaintiff was compelled to accede to his request to commence a suit, he should have set forth the facts presented in the petition, so that the court here could determine as a matter of law whether or not the plaintiff was remiss in its duty to him in refusing to adopt the complaint presented. For all that appears in the answer, the complaint which he desired the plaintiff to subscribe was wholly insufficient for the purpose designed and would only have involved the plaintiff in further complications.
Passing this point, however, we approach what we deem the vital question in the case, which is the force and effect of the Washington judgment. We remember that the findings of fact in the case are conclusive upon appeal unless the court on examination of the record contained in the bill of exceptions discerns that there is no evidence to support the findings. The first assignment of error is based upon the contention that the finding to the effect that the Washington action was settled before judgment therein was without foundation in the testimony. The proceedings of the Washington court in the action in question are in the record before us. They include the pleadings, the findings of the court, and the judgment. The complaint is for labor, capital, goods,...
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