West v. Broadwell

Decision Date27 March 1928
Citation124 Or. 652,265 P. 783
PartiesWEST ET AL. v. BROADWELL ET AL.
CourtOregon Supreme Court

Appeal from Circuit Court, Lincoln County; G. F. Skipworth, Judge.

Action by J. A. West and another against Jacob W. Broadwell and others. Judgment for plaintiffs, and defendants appeal. On plaintiffs' motion to dismiss the appeal. Appeal dismissed.

See also, 265 P. 783.

Vinton & Tooze, of McMinnville, for appellants.

Botts &amp Winslow, of Tillamook, for respondents.

PER CURIAM.

This cause comes upon motion to dismiss the appeal. Plaintiffs recovered judgment in an action to recover the possession of real property. The judgment was based upon the verdict of a jury. Thereafterwards defendants gave notice of an appeal to this court. Thereafter, and before the transcript was filed here, it is alleged in an affidavit by an attorney for plaintiffs that the controversy between plaintiffs and defendants had been fully settled and terminated. The motion to dismiss is based upon the affidavit averring that said cause had been settled. This affidavit is disputed in part by counsel for defendants who appeal. Counsel for defendants deny that the cause was settled, but state:

"That relative to the said agreement of settlement, I hereby admit that the said Broadwells signed said memorandum shortly after judgment was obtained against them for costs and that they agreed to leave some hay on the real premises involved in the ejectment suit in consideration of the plaintiffs canceling and satisfying the said judgment for costs; that the said plaintiffs wholly failed and neglected to comply with said agreement, and did not cancel or satisfy said judgment for costs until long after the defendants had filed and served their notice of appeal herein; that said agreement of settlement was intended solely as settlement of said judgment for costs, and was not intended as a settlement between the parties of their respective rights with reference to the property involved. * * *"

The memorandum referred to in said affidavit is as follows:

"Broadwell Bros. hereby agree to leave all hay now on West place for West, and the said J. A. West, in consideration thereof, agrees to cancel judgment for costs and Broadwell Bros. agree to vacate premises by Oct 1st--27."

This statement in the affidavit of appellants is tantamount to an admission that appellants paid and settled the costs. It was early held in this court...

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9 cases
  • Pacific General Contractors v. Slate Const. Co.
    • United States
    • Oregon Supreme Court
    • December 3, 1952
    ...rule has been held applicable to a party who acquiesces in a part of a judgment while attempting to appeal from the remainder. West v. Broadwell, 124 Or. 652, 265 [196 Or. 612] P. 783; Bush v. Mitchell, 28 Or. 92, 41 P. 155. But as to this class of cases the rule is thus stated: 'Where the ......
  • Marriage of Nickerson, Matter of
    • United States
    • Oregon Court of Appeals
    • September 16, 1983
    ...the benefits of the judgment. Pac. Gen. Contrs. v. Slate Const. Co., 196 Or. 608, 611, 251 P.2d 454 (1952); West et al. v. Broadwell et al., 124 Or. 652, 653, 265 P. 783 (1928); State of Oregon v. Wells, Fargo & Co., 64 Or. 421, 425, 126 P. 611, 130 P. 983 (1913). However, an appeal may be ......
  • Graf v. Don Rasmussen Co.
    • United States
    • Oregon Court of Appeals
    • March 19, 1979
    ...the benefits of the judgment. Pac. Gen. Contrs. v. State Const. Co., 196 Or. 608, 611, 251 P.2d 454 (1952); West et al. v. Broadwell et al., 124 Or. 652, 653, 265 P. 783 (1928); State of Oregon v. Wells, Fargo & Co., 64 Or. 421, 425, 126 P. 611, 130 P. 983 (1913). However, an appeal may be ......
  • Cottrell v. Prier
    • United States
    • Oregon Supreme Court
    • May 16, 1951
    ...election to take one of these courses was, therefore, a renunciation of the other.' Moore v. Floyd, 4 Or. 260. See, also, West v. Broadwell, 124 Or. 652, 265 P. 783. A closely parallel case is Cranford v. Hodges, 141 Ark. 587, 218 S.W. 185, 186. There the court ordered cancellation of a dee......
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