Walker v. Baker

603 P.2d 1193, 43 Or. App. 501, 1979 Ore. App. LEXIS 3431

• Court: Court of Appeals of Oregon
• Decided: December 10, 1979
• Docket: No. 36-915, CA 13108
• Status: Published

Opinion

SCHWAB, C. J.

This is the continuation of a dispute that started in 976 over whether defendants will ever perform their greement to sell real property to plaintiffs. In 1977 he trial court first decreed specific performance of efendants’ agreement to do so. In 1978 the Supreme Court affirmed. Walker v. Baker, 283 Or 231, 582 P2d 7 (1978). In entering the Supreme Court’s mandate, he trial court again decreed that defendants perform heir agreement to sell their property to plaintiffs. In lis appeal defendants contend the trial court erred in wo respects in its order entering the Supreme Court’s landate.¹

Defendants first complain about the trial court’s stting a new date for the transaction to be closed in scrow. Their contention is absurd. The trial court’s riginal decree was entered June 10, 1977, and direct-d that the transaction be closed on June 15, 1977. defendants appealed and filed a supersedeas bond rat stayed the decree. The Supreme Court affirmed le specific performance decree on August 8,1978. In ntering the Supreme Court’s mandate on December 8, 1978, the trial court ordered the transaction be osed on January 15, 1979. Defendants’ supersedeas ond filed in this appeal has again stayed the trial lurt’s order.

Obviously, when the question was before the trial mrt in December, 1978, it was impossible to close the 'ansaction on June 15, 1977—the date originally screed. It was not error to set a new closing date. We mnot comprehend why defendants are now insisting íat the decree against them should require them to do Bsmething two years ago—a provision which would, of Bmrse, put them in contempt.

Defendants next object to a provision in the trial court’s order entering the Supreme Court’s mandate to the effect that the company handling the closing of the property transaction in escrow

"* * * shall not pay the broker’s commission specified in the earnest money agreement specifically enforced by this court’s prior decree until ordered to do so by defendants or until the dispute between defendants and their realtor has been resolved by a further order of this court.”

This provision is addressed to a concern that has nothing to do with these plaintiffs or this case, but rather, a separate dispute between defendants and their realtor, who is not a party to this case. Defendants have proven themselves quite capable of asserting what they believe to be their rights at all levels of the Oregon judicial system, and it is not necessary or appropriate to try to deal in any way with a separate dispute in this case. The above provision should be eliminated.

Affirmed as modified and remanded with instructions to set expeditiously a new date, not in the distant future, for defendants’ performance of their obligations.

1 Johnson v. Campbell, 262 Or 500, 497 P2d 666, 498 P2d 381 (1972), Miplies, albeit without discussion, that the trial court’s order is appealable. wihnson thus seems to overrule by implication Apex Transp. Co. v. Garbade, 32 Or 582, 52 P 573, 54 P 367, 54 P 882, 62 LRA 513 (1898).