Finley v. Houser

30 P. 494, 22 Or. 562, 1892 Ore. LEXIS 91

• Court: Oregon Supreme Court
• Decided: June 21, 1892
• Status: Published

Opinion

Strahan, C. J.

This is not a direct proceeding to annul or vacate the judgment and decree mentioned in the pleadings, but an attempt to attack them collaterally, and thus avoid their legal effect. It has been so often decided that this could not be done, that we deem it unnecessary to cite the authorities. Morrill v. Morrill, 20 Or. 96, is the latest expression in this court on the subject; see also the same ease, 23 Am. St. Rep. 95, where it is carefully annotated and many of the cases cited.

The attack which the plaintiffs attempt to make on the mortgage amounts to nothing. It is the judgment as well as the decree which stands in his way. Both the judgment and decree necessarily affirmed the validity of the mortgage. The fact of its validity was actually and necessarily included in each of those adjudications, and was necessary thereto. (1 Hill’s Code, § 736.) That fact, then, is just as conclusively settled as any other determined by the judgment and decree referred to. It is useless to attempt to illustrate a proposition so obvious, or to cite authorities to sustain it. The appellant seeks to avoid the force of these views by suggesting that he was not made a party to either the suit or action. The answer to that is, that he has not shown by his pleading that he had any interest at that time. The reply makes no such question; and if it did, as near as we can tell from this record, the action was pending at the time of said alleged assignment. . If that is correct, then the appellant is bound by the judgment whether he was made a party or not. He is a lis pendens purchaser.

The decree appealed from must therefore be affirmed.