State v. Gutridge

80 P. 98, 46 Or. 215, 1905 Ore. LEXIS 29

Opinion

Mr. Chief Justice Wolverton

delivered the opinion.

The cardinal and essential question presented by this record is whether there was ever any order or judgment rendered by the circuit court, in the proceedings supplemental to execution, directing or requiring the defendant to apply sufficient of the $2,000 found to be in his possession in payment of the Thorn-burg judgment to satisfy it. If there was no such order or judgment made or rendered, it is self-evident that there could be no contempt for disobeying it. The alleged judgment having been made a part of the affidavit, we are thus enabled to determine from the record whether it is such as is claimed for it. The question was raised by the motion, and was not waived by the answer, which presents it again, because it goes to the want of facts sufficient upon which to base the proceeding.

1. It is perfectly clear that the matters of record relied upon as constituting a final'order or judgment in the cause are not such, either in' legal effect, or by intendment of the court or judge. They consist of the findings of the court merely, which were not followed by any order affecting a substantial right of the defendant in the proceeding. After reciting certain facts, as-will be seen, the court proceeds:

“I therefore find that the defendant, G. H.' Gutridge, at this time is the owner of and in possession of $2,000.”

This further appears: ■

“As conclusions of law I find that the defendant, G. H. Gut-ridge, be required to pay said $2,000, or as much thereof as may be necessary to satisfy the said judgment, and costs and disbursements taxed at $149.30, within 15 days from the entry of judgment herein.”

The first was perhaps intended as a finding of fact, but, be that what it may, the last was evidently designed as a conclusion of law. It is so styled, and the purpose, manifestly was that it should be followed by a final order or judgment, the conclusion being that Gutridge be required to make the designated application of the money within 15 days “after entry of judgment herein,” not after the entry of “this judgment,” as would most likely have been.the case if it had been thought that the conclusion was in reality a judgment or order of the court. The statute requires that, upon the trial of an issue of fact by the court, its decision shall be given in writing, which shall state the facts found and the conclusions of law separately. These, again, are required to be entered in the journal, and judgment is rendered thereon and in accordance therewith: B. & C. Comp. § 158. This statute has generally been followed in practice, and there is but little doubt that the trial court intended that its findings should be followed by an order of judgment directing that the money which it found to be in the possession of the defendant should be applied in payment of the Thornburg judgment against defendant, but for some reason it was not done, and none, so far as the record shows, was ever made or entered. We conclude, therefore, that the affidavit is insufficient to support the contempt proceeding.

2. There is another reason back of this one, going to the utter disparagement of the affidavit. The finding that Gutridge was in possession of $2,000 at the time it was made is not deducible from the findings of fact upon which it is based. It should be premised that the court made its findings nearly 10 months after the referee reported the testimony, which was more than a year after he was appointed to take it. The result, with the deductions, are, in brief, that in May, 1902, defendant sold a piece of real property, and was paid $2,000 therefor; that he has since been receiving three dollars a day; that he has a wife, but no children; that his wife has been keeping boarders for pay, while he has been working; and that no satisfactory explanation has been made as to what has been done with the said $2,000 and the wages received; ergo, that he had the $2,000 in his pos session at that time — that is, when the findings were rendered. In the case of Hammer v. Downing, 41 Or. 234 (66 Pac. 916), the disputable presumption that a thing once proved to exist continues as long as is usual with things of that nature

Footnotes

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* was invoked in aid of the finding that the defendant still had in his possession a sum of money that he was shown to have had three months previous, and it was held to be unavailable. If unavailing there, how much less would be its utility in support of the finding here; so that, had there been a final order following the findings — that is, a judgment or order based thereon — it would not have supported the proceeding for contempt, and such is the doctrine of Hammer v. Downing.

Based on these considerations, the judgment of the circuit court will be reversed, and the cause remanded with directions to dismiss the proceeding and discharge the defendant.

Beversed.

B. & C. Comp. § 788. subd. 33.