Wilson v. Blakeslee

• Citation: 16 P. 872,16 Or. 43
• Parties: WILSON v. BLAKESLEE et al.
• Decision Date: 02 February 1888
• Court: Supreme Court of Oregon

16 P. 872

16 Or. 43

WILSON v. BLAKESLEE et al.

Supreme Court of Oregon

February 2, 1888

Appeal from circuit court, Union county.

W.S Clink sued James Wilson to recover possession of certain chattels, and executed a claim and delivery bond, with Coffin, Biggers, Blakeslee, and Robbins as sureties. Wilson recovered judgment, and then sued the makers of said bond. All the defendants were served with process, and appeared. Biggers and Blakeslee answered. Coffin and Robbins withdrew their appearance, and Wilson took judgment against them by default. Biggers and Blakeslee then filed a supplementary answer, insisting that all further proceedings against them were barred by the judgment against Coffin and Robbins. To this answer Wilson demurred, and also moved to vacate his judgment against Coffin and Robbins; and at the same time Biggers and Blakeslee moved to dismiss the action as against them. The court granted the motion to dismiss, but denied Wilson's motion to vacate judgment, and overruled his demurrer; and he appeals.

Baker &amp Baker and R. Eakin, for appellant.

T.H Crawford and Ramsey & Bingham, for appellee.

THAYER J.

This appeal comes here from a judgment of the circuit court for the county of Union. The appellant commenced an action against the respondents in said circuit court, and alleged in his complaint therein that in a former action in said court wherein one W.S. Clink was plaintiff and appellant was defendant, to recover the possession of certain personal property consisting of 130 head of cattle, and their increase for the years 1881 and 1882, and other property, the plaintiff therein claimed the immediate delivery thereof; and thereupon the respondents executed an undertaking which recited, in effect, that the plaintiff had applied for the provisional delivery to him of the personal property sought to be recovered in the action from the possession of the defendant therein; and in which the said respondents as sureties acknowledged themselves bound unto said defendant in the sum of $4,000 for the prosecution of the action for the return of the property to defendant, if return thereof was adjudged; and for the payment of any sum which the defendant might recover in the action against the plaintiff; that by means of the said undertaking, and an affidavit made by the plaintiff, and a notice to the sheriff of said county of Union, as required in such cases, the said personal property was taken from the defendant in the action (this appellant) and delivered to the plaintiff therein, the said Clink; that said action was tried by the court; and that this appellant recovered judgment against the said plaintiff for the return to appellant of the said personal property, the value of which was assessed at $2,142, and for the sum of $318.57, damages for the wrongful detention of the property, and $450.33, costs and disbursements in the action. Said appellant further alleged in his complaint that neither said property, nor any part thereof, had been returned to him; nor had any part of the value of the property, or of the damages or costs, or disbursements, been paid; that by reason of the premises the respondents were jointly and severally indebted to him in the sum of $2,900, with interest thereon since the 29th day of May, 1884, for which he demanded judgment.

An answer, purporting to be the answer of the respondent Biggers only, was filed, controverting a part of the allegations contained in the complaint, and setting forth affirmative matter of defense. After the filing of the answer the appellant's counsel moved the court for default and judgment against the defendants Coffin and Robbins, for want of an answer therein. The counsel for respondent resisted the motion, claiming that the answer was on behalf of all the defendants in the action. Thereupon said Coffin and Robbins filed the following papers:

"[Title of the cause.] Now comes P.M. Coffin and C.E. Robbins, in personam, and hereby disclaim any part in the answer filed in the above-entitled action, and ask the court to take their names therefrom, and hereby withdraw from further appearance in said action.

[Signed] "P.M. COFFIN.

"C.E. ROBBINS."

Thereupon the court granted the motion of the respondent for default and judgment against said defendants. The judgment recites, in effect, that the cause coming on to be heard upon the disclaimer filed therein by defendants Coffin and Robbins, and the motion of appellant filed therein for judgment against them upon the complaint; and it appearing to the court that said defendants had, by special personal appearance, filed in writing therein, expressly disclaimed any part in the answer theretofore filed, and withdrawn from further appearance in the cause; and having failed to answer or further plead in the action; and it appearing that they were jointly and severally indebted in the sum of $3,307.02. And thereupon said court ordered and adjudged: That the appellant have and recover, etc., (the usual form of judgment.) The judgment also contains the further order that the said answer be amended so as to disclose it to be the separate answer of C.L. Blakeslee and G.W. Biggers, two of the defendants in the action. The defendants in the action, (said Blakeslee and Biggers,) at a subsequent term of the said court, to which the said cause had been continued, filed a motion asking leave of the court to file a supplemental answer, which having been granted, a supplemental answer was filed. It recited, in substance, that at the time of the commencement of the action all the defendants therein were duly and personally served with summons and regularly appeared, etc.; then referred to the circumstance of the disclaimer and of the action of the court thereon; and thereupon, in the language of said answer, submitted that the pretended cause of action against all the defendants jointly was was merged into said judgment entered against the two defendants Coffin and Robbins, and pleaded said judgment as a complete bar to further proceedings of the action. The plaintiff demurred to this answer as constituting no defense. The appellant's counsel then moved to vacate the judgment entered against said Coffin and Robbins, for the reason that the entry was not authorized by law and was void. The demurrer and motion were heard by the court at the same time; and the former was overruled, and the latter denied. The case at this juncture, figuratively speaking, was in convulsions, and the court evidently concluded to let it remain in that condition. At a subsequent term of the said court, to which the cause in its distorted shape had been continued, the appellant's counsel renewed his motion to vacate the judgment entered as mentioned, and the counsel for the defendants Blakeslee and Biggers moved the court to dismiss the action, upon the ground, I suppose, that it was upon a joint claim, and judgment having been taken against two of the joint contractors, when all of them had been made defendants in the action and been served with summons, it operated as a bar against all. The court denied the appellant's motion to vacate the judgment, and granted the motion of the respondents' counsel to dismiss the case as to Blakeslee and Biggers, which terminated the agony attendant on the affair in the circuit court. The appellant brings this appeal from the judgment of dismissal, and seeks to review the orders refusing to grant the motion to vacate the judgment, and the order dismissing the action as to the said defendants Blakeslee and Biggers.

The question in the outset was simply to recover upon an alleged breach of the said undertaking. The undertaking was a joint obligation upon all the defendants in the action. They did not deny in their answer (conceding it to have been the answer of all of them) its execution, but sought to establish that they were not liable thereon by reason of some discrepancies in the proceedings under which the property was taken from the appellant by the sheriff of Union county. Why the action was not tried and disposed of without the interposition of the number of motions and demurrers resulting ultimately in its entanglement to such an extent that its merits were not reached, would astonish a practical-minded attorney, and serve to confirm the ordinary layman in the belief that the law is a species of jugglery. It is unfortunate that legal proceedings are not conducted always with a view of justly and speedily determining the disputes and controversies between parties respecting their personal and property rights in the complicated state which their transactions often assume. Our system of jurisprudence will not be respected or upheld unless conducted for the object and purpose of settling the disagreements between parties honestly, promptly, and economically. This is the second time this case has been here, and it presents now only a "jangle." No question arising out of a disagreement between the parties affecting...