Duniway v. Cellars-Murton Co.

170 P. 298, 92 Or. 113

Opinions

McBRIDE, C. J.

1. The redemption under the circumstances under which it was made was not voluntary and, as shown by the protest accompanying it, was not made with any intent to waive appellant’s rights on appeal. In similar cases we have held that such a payment does not furnish ground for dismissal of the appeal: Edwards v. Perkins, 7 Or. 149; Moores v. Moores, 36 Or. 261 (59 Pac. 327); Eilers Piano House v. Pick, 58 Or. 54 (113 Pac. 54). See, also, Plano Mfg. Co. v. Rasey, 69 Wis. 246 (34 N. W. 85); Bush v. Aetna Bldg. & Loan Assn., 51 Okl. 529 (151 Pac. 850); Warner Bros. v. Freud, 131 Cal. 639 (63 Pac. 1017, 82 Am. St. Rep. 400).

This holding is not to he confounded with those cases holding that a party voluntarily accepting the benefits of a decree or voluntarily doing some act inconsistent with his contention on the appeal is precluded from maintaining such appeal, or with those cases in which the entire subject matter of the appeal having disappeared there would be nothing left which a reversal of thé decree could affect. In the case at bar the appellant in the event of reversal would be entitled by appropriate proceedings for that purpose, to a restitution of the moneys which he was compelled to pay to prevent a deed to his property being issued by the city treasurer: McFadden v. Swinerton, 36 Or. 336, 354 (59 Pac. 816, 62 Pac. 12).

The motion is overruled.

Motion to Dismiss Denied.