Underdahl v. Holman

• Decision Date: 08 December 1936
• Parties: UNDERDAHL et al. v. HOLMAN, State Treasurer, et al.
• Court: Oregon Supreme Court

62 P.2d 939

155 Or. 125

UNDERDAHL et al. v. HOLMAN, State Treasurer, et al.

Supreme Court of Oregon

December 8, 1936

In Banc.

Appeal from Circuit Court, Marion County; L. G. Lewelling, Judge.

On petition for rehearing, petition or motion for diminution of the record, and motion to modify former opinion to provide that cause be remanded with opportunity to appellant to present evidence in support of his claim.

Petitions and motion denied.

For former opinion, see 60 P.2d 968.

Moe M. Tonkon and Calvin N. Souther, both of Portland, Vinton, Marsh & Marsh, of McMinnville, and Wilbur Beckett, Howell & Oppenheimer, of Portland, for appellant.

James L. Conley, of Portland, and Carson & Carson, of Salem, for Clark and Conley.

C. O Fenlason, of Portland, for Sherman J. Frank, claimant.

Andrew Koerner, and Dey, Hampson & Nelson, all of Portland, for Standard Oil Co.

BAILEY, Justice.

The appellant, B. Underdahl, has filed a petition for rehearing a petition or motion for diminution of the record, and a motion to modify our former opinion to provide that the cause be remanded with opportunity to appellant to present evidence in support of his claim.

In the motion for diminution of the record, the appellant urges upon us that the proceedings on the final hearing in the circuit court were such as to lead him to believe that the only question there involved was whether claims arising out of casualty insurance written by the insolvent insurance company were payable out of the deposit made by that company with the state treasurer as a condition of doing surety insurance business in this state. Because of such understanding on the part of appellant, the transcript of proceedings on the final hearing in the circuit court was not made a part of the record on appeal to this court. A purported transcript of the proceedings had at that hearing is made a part of the motion for diminution of the record. The petition for a modification of our former opinion requests that if this court on a reconsideration of the matter should determine, from the record here or on the record as claimed by the motion for a diminution of the record, that the appellant had failed to establish his claim by sufficient proof, the cause be remanded, with an opportunity to appellant to introduce testimony in support of his claim.

The only ground on which the appellant asks a rehearing is that he is entitled to have his claim paid from the residue of the deposit with the state treasurer after the payment of claims against the insolvent insurance company based upon surety bonds written by that company. Assuming that the appellant is correct in his contention that he was under a misapprehension as to the position which would be taken by the respondents in this court with reference to the nature of the questions involved, and that for such reason he had neglected to present a full transcript of the proceedings before the trial court, nevertheless it would, in our opinion, be futile either to grant the motion for diminution of the record or to modify our former opinion. It may be conceded, in considering the petition and motions here involved, that the appellant established his claim against Federal Surety Company arising out of casualty insurance either originally written or reinsured by that company. Such a liability on the part of Federal Surety Company, however, is not payable out of its deposit with the state treasurer. That deposit, as was held in Earle v Holman, 61 P.2d 1242, decided by this court November 5 1936, is limited to surety insurance business.

It is true that in that case the claims growing out of surety insurance business filed against the deposit and allowed by the court greatly exceeded the amount of the deposit, while in the case at bar it would appear that there would be enough of the deposit remaining after paying the claimants on surety bonds to pay the appellant's claim. In support of his contention that he is entitled to share in such residue, the appellant cites and relies upon the following cases State ex rel. Union Indemnity Co. v. Knott, 105 Fla. 569, 143 So. 221; Kelly v. Knott, 120 Fla. 580, 163 So. 64; Snedigar v. New...