Merriam v. Victory Mining Co.

56 P. 75, 37 Or. 321

• Court: Oregon Supreme Court
• Decided: May 12, 1900
• Status: Published

Opinions

Mr. Chief Justice Wolverton

delivered the opinion.

In the course of litigation affecting it, S. W. Blaisdell was appointed receiver of the defendant corporation. During his management of the business of the concern as such receiver, many claims were presented to him for adjustment and payment; among them, the claims of Willis Kramer and nineteen others for labor and material, aggregating $7,013.09. J.T. C. Nash also presented a claim for $90,000 on account of certain bonds executed by the corporation, and secured by mortgage upon the real property of the concern ; and Thomas E. Sturgeon for $2,000, being the amount of four such bonds alleged to have been secured by the same mortgage. The receiver filed what was intended to be his final account in-June, 1897; but this does not appear to have been acted upon by the court, and on January 6,1898, he filed an account supplemental thereto, which together showed the condition and status of the estate at that time, including a list of all claims theretofore presented to the receiver for adjustment. A summary of the account is as follows :

Total cash received__________________________________________________________$ 50,815 19 Amount paid out under direction of the court---------------------------- 3,450 96

, Balance In hands of receiver____________________________________________$ 47,364 23

Upon the final hearing and settlement of' these accounts, the court below ordered and directed that the receiver pay — First, the additional expenses of the receivership, amounting to $46.50; second, the labor and material claims due Kramer and others, amounting to said sum of $7,013.09 ; and, third, to J. T. C. Nash the residue of the funds on hand, except the sum of $3,500, which he was required to retain to await the final determination of certain proceedings instituted by one J. M. Stevenson upon alleged claims against the corporation and receiver, but that, in case such proceedings were not prosecuted with effect to final determination, then that said latter sum be also paid to Nash. From the order and decree thus entered, Nash appeals, and complains of the preference given the claims for labor and material over his. Later a cross appeal was filed by Sturgeon, who complains' that his claim was not allowed to share pro rata with that of Nash in the surplus funds. It appears by a subsequent report of the receiver that Nash received from him, and receipted for, the sum of $36,804.23, being all of such residue except the said $3,500, prior to the institution of the appeal; and the labor and material claimants now move to dismiss upon the ground that the appellant has received and accepted the fruits of the decree appealed from, and has thereby waived and precluded his right to such appeal.

1. The rule is well settled in this state and elsewhere that a party who receives a substantial benefit or the fruits of the litigation cannot be heard to complain of the action of the court which gave him the award or judgment. The right to proceed upon a judgment'or decree} and invoke the process of the court to that end, and thus acquire or otherwise secure and enjoy the fruits, of such judgment or decree and the right to appeal therefrom, are nonconcurrent and wholly inconsistent; so that an election to enforce the edict of the court, and to secure the benefits awarded, acted upon to the extent that an appropriation has been accomplished, is a renunciation of, and precludes, the right of appeal: Moore v. Floyd, 4 Or. 260; Ehrman v. Astoria Ry. Co. 26 Or. 377 (38 Pac. 306); Bush v. Mitchell, 28 Or. 92 (41 Pac. 155). The rule, however, does not militate against the right of appeal by a party who accepts the amount voluntarily tendered or paid on a judgment or decree. Such right is not inconsistent with the acceptance of the amount admitted to be due by the pleadings in the case (Portland Const. Co. v. O'Neil, 24 Or. 54, 32 Pac. 764; Stemmer v. Scottish Ins. Co. 33 Or. 65, 49 Pac. 588); the purpose of the appeal being the enforcement of a contested or disputed right, and such as is additional merely to that which is conceded by all parties to the litigation. In consonance with this right is the right also to accept the benefits awarded by the judgment or decree, and, at the same time, prosecute the appeal, where that which is awarded would accrue to the appellant in any event; that is, whether a reversal, modification, or affirmance be obtained: Stemmer v. Scottish Ins. Co. 33 Or. 65 (49 Pac. 588); Hinchman v. Point Defiance Ry. Co. 14 Wash. 349 (44 Pac. 867, 869); In re Day, 18 Wash. 359 (51 Pac. 474). Now, so far as the respondents the labor and material claimants are concerned, the appeal cannot affect the relief obtained by Nash. These claimants secured by the decree all they sought, to the full limit of the relief .demanded; and the surplus only after satisfying them, save the $3,500 directed to be retained to meet the contingencies subsisting, as it respects the Stevenson claims, is what the appellant was awarded. His appeal is prosecuted for the purpose of contesting the right of the labor and material claimants to what was awarded to them, and directed to be first paid out of the funds in the hands of the receiver. As between them and the appellant, they could not recover any more or acquire any better or superior rights in any event; nor could it depreciate or detract from the amount accorded the appellant whether the claimants were successful or not in their resistance of the appeal. It is said, however, that, if Sturgeon should prevail in his cross appeal, it would depreciate from the amount awarded to Nash. But the answer to this objection is that Sturgeon is not seeking to have the appeal dismissed. In point of fact, his only remedy is in having the appeal prosecuted, especially upon his own part, to final determination, for the decree of the court below is against him. He is not complaining of the appeal, and the labor and material claimants cannot complain upon the ground that Nash has accepted benefits under the decree which belonged to Sturgeon, so long as he has accepted nothing of their seeking. In so far as the Stevenson claims are concerned, $3,500 was especially reserved by decree of the court, which was supposed to cover all contingencies that might arise in any event respecting them; so that the acceptance of the award by Nash could not impair in any way the rights of Stevenson if he was complaining. At all events, Nash’s receipt of the funds was not inconsistent with his right of appeal, as it may concern the claimants who are resisting his appeal by the motion to dismiss. The motion will therefore be overruled. Motion Overruled.

Mr. O. P. Coshow, for the motion. Mr. Andrew M. Crawford, contra.

Decided 31 July, 1900.

On Second Motion to Dismiss Appeal.

Per Curiam.

2. This is a motion to dismiss an appeal from an order of distribution of certain funds in the hands of a receiver on the ground that the appellant had no interest in or claim to the fund at the time the appeal was taken. The record is voluminous, and somewhat complicated, and we are of the opinion that the consideration of the motion ought to stand over until the cause is reached for hearing on the merits, and it is so ordered.

For appellant Nash there was a brief and an oral argument. by Messrs. Geo. H. Durham and Wm. B. Willis. For appellant Blaisdell, as receiver, there was a brief over the name of Andrew M. Crawford, with an oral argument by Mr. Edward B. Watson. • For respondents, unsecured creditors, there was a brief over the names of O. B. Coshow and C. A. Sehlbrede, with an oral argument by Mr. Coshow.

Motion Overruled.