DEMURRER OVERRULED. Original proceeding in mandamus to compel The Honorable Charles W. Redding, circuit judge of the fourth judicial district of Oregon, to assign for trial the case of O.W. Mursener v. M.K.Forte, et al, to some judge other than The Honorable Alfred P. Dobson against whom the plaintiff has filed an affidavit of prejudice.
On November 22, 1943, the plaintiff, Mursener, instituted in the circuit court of Multnomah county a suit against M.K. Forte, et al. Thereafter the cause was assigned for trial to The Honorable Alfred P. Dobson, one of the circuit judges of that district, and various proceedings were had which will be noticed later. On March 24, 1944, the plaintiff, Mursener, filed a motion and affidavit of prejudice based upon O.C.L.A. § 1-503 for the purpose of disqualifying Judge Dobson. On January 16, 1945, said motion and affidavit were by the presiding judge assigned to the defendant, Judge Redding, for determination. On January 20, 1945, Judge Redding denied the motion. On January 23, 1945, the plaintiff filed his petition for an *Page 619 alternative writ of mandamus whereby he sought the mandate of this court requiring Judge Redding to disqualify Judge Dobson and to reassign the case. An alternative writ issued. Judge Redding filed a voluminous return to which the plaintiff demurred and the case is here for our determination. Under our practice, the writ takes the place of a complaint and we shall refer to the petitioner as plaintiff, and to Judge Redding as the defendant. The demurrer to the return admits all well pleaded allegations thereof and opens the record.
The return of Judge Redding sets forth a record of the proceedings in the case of Mursener v. Forte from the filing of the complaint to the filing of the affidavit of prejudice. From it we ascertain the following facts. On November 22, 1943, plaintiff, Mursener, filed his complaint, identifying himself as acting for and on behalf of the International Brotherhood of Boilermakers, Iron Ship Builders and Helpers of America. By virtue of his alleged authority from the president of the International Brotherhood, he asserted the right to take full charge and control of the financial and business affairs of Local 72 of said Brotherhood and to oust the defendants, Forte, et al, from control over the affairs of said Local 72. Plaintiff also sought a temporary injunction enjoining the defendants from interfering with his custody and control of said Local 72. The complaint alleges that the defendants, Forte, et al, refused to permit the plaintiff to assume the duties to which he was appointed and were claiming to act as officers of Local 72 and that, as such, the defendants had been guilty of mismanagement of the affairs of said Local. At the instance of the plaintiff, a temporary injunction was issued against the *Page 620 defendants. The defendants, Forte, et al, demurred to the complaint. Thereafter, and on January 5, 1944, by leave of court, Melinda E. Murray filed in said suit an answer in intervention, and on the same day, by leave of court, A.E. Jordan, C. Jaco, et al, filed therein their answer and cross-complaint in intervention.
The complaint in intervention contains allegations concerning misconduct by persons purporting to manage the affairs of Local 72. It includes charges of mismanagement against the plaintiff and others; the misappropriation of funds; and a multiplicity of suits, 14 lawsuits having been filed, all of which involved the affairs of Local 72. It alleges that the plaintiff is proposing to hold an illegal election for the selection of officers to control the affairs of said Local and prays for the appointment of a receiver; for orders which would provide for the holding of an election; for an accounting; and for an order restraining the plaintiff and the defendants from asserting any right to the control of Local 72.
By way of summary, it is sufficient to say that all of the pleadings in the case present a conflict between various groups and persons seeking to control the affairs of Local 72 and to secure possession of its funds. The pleadings involved questions as to who were or might become the lawful officers of said Local, and upon the decision of those questions depended in large measure the ultimate control of the affairs and funds of the Local. The election of officers under lawful authority would therefore constitute the actual settlement of substantial issues raised by the pleadings.
The cause, including the issues raised by the complaint in intervention, had been assigned to Judge Dobson who "heard said matters continually on and *Page 621 between January 4, 1944 and January 17, 1944." Among the matters so heard was the claim of intervenor Melinda E. Murray which was compromised.
On or about January 17, 1944, Judge Dobson sustained the demurrer to plaintiff's complaint. On the same day the court made an order upon the petition of the intervenors for the appointment of a receiver. The order recites the appearance of the plaintiff by his attorney. We quote a portion of that order:
"Because of the number of matters submitted and the extent of the proceedings occasioned thereby, the court of the hearing of said matters took a wide range and became more or less informal, and it was understood between counsel and between the Court and counsel for the respective parties, that all matters involved might be submitted to the Court;
"During the course of the hearing all parties, save plaintiff, agreed in open court that receivership was the only solution for the difficulties of Local No. 72 and consented to the appointment of a receiver;
"Said matters were heard from day to day to and including the 14th day of January 1944, during which time facts were disclosed upon which the Court finds that intervenors are entitled to the appointment of a receiver and upon which the Court also finds that in any event it should upon its own motion in the best interests of all the parties hereto and the members of Mt. Hood Lodge Local No. 72 appoint a receiver for said Local, with the power and authority and for the purposes in this order hereinafter set forth;"
The receiver was appointed and instructed as to his powers and duties. He was directed to conduct an election of delegates to the national convention of the International Brotherhood, to pay the expenses of the *Page 622 delegates, to hold meetings for the nomination of officers of Local 72, and to assume custody of all funds of the Local. The plaintiff was directed to deliver to the receiver all control of the business affairs, funds, records, etc., of the Local. The receiver was further directed to audit the assets thereof and to render an accounting.
The plaintiff filed and argued a demurrer to the complaint in intervention which was overruled on January 18, 1944. On the same day the temporary injunction which had been issued at the instance of the plaintiff was vacated by order of Judge Dobson and the order sustaining the defendants' demurrer to the plaintiff's complaint was entered. Thereafter, and on February 21, 1944, the plaintiff filed an answer to the cross-complaint of intervenors Jaco, et al, who in turn filed a reply.
Thereafter, and on March 5, 1944, a written agreement was entered into between the International Brotherhood by Charles J. MacGowan, president, Oscar Furuset, receiver, Morton Crowther and Hugh L. Barzee, attorneys for the intervenors Jaco and Poore, and C.W. Robison, of attorneys for the defendants. It will be observed that Charles J. MacGowan was the officer of the International Brotherhood under whom the plaintiff, Mursener, claimed the authority to control the affairs of Local 72. The agreement, which is Exhibit 10 of the defendant's return, contained a first unnumbered paragraph followed by paragraphs numbered 2, 3, 4, 5, 7, 11, and 12. Paragraph 12 provided:
"12. This memorandum shall be incorporated into a Stipulation and presented to the Court and urged by all concerned as a basis for an interlocutory decree to be followed, when consummated, by final decree." *Page 623
The contents of the other paragraphs of the written agreement will be later set forth.
Pursuant to the provisions of paragraph 12 of Exhibit 10, and on the next day, March 6, 1944, a formal stipulation entitled in the cause was executed. It appears in the return as Exhibit 11 and, omitting the title, is as follows:
"The undersigned parties do hereby stipulate as follows:
"1. It is understood by all parties at interest that the election to be held in Lodge 72 on March 6th, 7th and 8th, 1944, will be in conformity with the constitution, laws and customs of the International Brotherhood. The tellers who have been previously selected will be designated by the International President to serve as tellers representing the International Brotherhood. There will be an International officer present at each session or shift during the three days that the election is to be held. These officers or representatives will be there in the capacity of observers only and as the personal representatives of the International President.
"2. Because the election was commenced under the former constitution, the qualifications of nominees and electees will be determined under that constitution;
"3. The officers elected will be installed in office by the International President as promptly as it can be arranged after tellers have counted the ballots.
"4. The Officers pro tem shall certify the election to the International Brotherhood.
"5. All assets now being held by the International Brotherhood for safekeeping will be turned over to the duly elected officers as soon as they have made bond, and the International Brotherhood will assist in procuring return of interpleaded funds to the duly elected officers. *Page 624
"7. The International Brotherhood will take no disciplinary action against any member of Local 72 because of any conduct prior to the election which the International Brotherhood deems adverse to its interests or contrary to the constitution, by-laws, usages or customs of the International Brotherhood or Local 72.
"11. All interested parties agree to use their best efforts to promote peace and end pending litigation.
"12. This stipulation is intended as a basis for an interlocutory decree in the above entitled court and cause to be followed, when consummated, by final decree and is entered into pursuant to memorandum agreement of March 5, 1944.
"Dated at Portland, Oregon, March 6th, 1944.
" WILBER HENDERSON
"MORTON CROWTHER and HUGH L. BARZEE
Attorneys for Receiver
"MORTON CROWTHER and HUGH L. BARZEE
Attorneys for Intervenors Jaco, et al.
" C.W. ROBISON Of Attorneys for Defendants"
Concerning this stipulation, attorneys for the plaintiff in their brief very properly say:
"Exhibit 11 of the Answer, which is the stipulation containing the substance of the agreement, was signed by one of the counsel for the plaintiff, therefore we do recognize that plaintiff is bound by the stipulation."
We have not set forth the full text of Exhibit 10, the agreement of March 5, because paragraph for paragraph it is substantially identical in numbering and *Page 625 text to Exhibit 11 as set forth above. One difference, however, will be noted. Paragraph 12 of Exhibit 10, supra, provides that the memorandum shall be incorporated in a stipulation and presented to the court. Paragraph 12 of Exhibit 11 provides that "this stipulation is intended as a basis for an interlocutory decree" etc.
Charles J. MacGowan, who signed the agreement of March 5, was not a nominal party in the case of Mursener v. Forte, et al, but as we have said, he was the person under whom the plaintiff, Mursener, claimed authority to control the affairs of Local 72, and, as the principal of the plaintiff, he made the agreement with the receiver appointed by the court, and with other parties, and he authorized the execution of the formal stipulation which was executed by the plaintiff through his attorney on March 6.
Thereafter, and on March 11, the court made and entered an interlocutory decree which provided, in part, as follows:
"Now at this day this cause came on to be heard upon the interim report and petition of Oscar Furuset, Receiver, and upon a stipulation of the parties dated March 6, 1944, and the request by Receiver that an Interlocutory Decree be entered herein;
"And it appearing to the Court that the stipulation so made is for the best interest of all of the parties concerned herein, and that the same should be approved, and that Receiver should be directed as to his further conduct as Receiver, as hereinafter provided, and the Court being fully advised;"
Then follow paragraphs of the interlocutory decree which, paragraph for paragraph, in numbering and text, are substantially identical to paragraphs numbered *Page 626 1, 2, 3, 4, 5, 7, and 11 of the stipulation of March 6, supra. Paragraph 12 of the interlocutory decree contains matter which is not found in the stipulation of March 6. It reads as follows:
"12. That Receiver continue to be responsible for the financial affairs of Local No. 72 until the newly elected officers have been regularly installed and have made bond, and that he at that time place to the account of the proper officers a sum sufficient for the ordinary operating expenses of Local No. 72, and complete an audit of the affairs of Local 72 and report the same to this Court, to the International Brotherhood, and to Local No. 72, and make his accounting of his administration and of all funds and assets coming into his hands for examination and action thereon by the Court and that he present to the Court for its determination, among other expenses, the matter of his fees and those of attorneys representing or assisting him in the discharge of his duties, and abide the further decree of the Court when he has so done."
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