Staiger v. Holman

*69 BEAN, C. J. When a judgment is rendered against a party, his payment of the sum awarded will not preclude him from maintaining an appeal, unless it satisfactorily appears to the court that the payment was not coerced and was made with a view of settlement : Eilers Piano House v. Pick, 58 Or. 54 (113 P. 54). This ruling following the holding in Edwards v. Perkins, 7 Or. 149, where it was held that a party voluntarily paying a judgment rendered against him is not thereby precluded from prosecuting an appeal therefrom. The reason assigned for the determination there reached was based upon the fact that unless the undertaking on appeal stipulated for the payment of the judgment, if affirmed, the respondent, notwithstanding the appeal, could enforce it and the payment was simply another mode of effecting the purpose of such undertaking. Mr. Justice Boise, referring to the rights of the appellant, in rendering the decision, said: “We think he is in no worse position from having paid the judgment voluntarily than if he had settled the execution with costs.” In Duniway v. Cellars-Murton Co., 92 Or. 113 (170 P. 298, 179 P. 651), which was an appeal from a sewer assessment upon certain property for the construction of a sewer, the assessment not being paid, and delinquent, the city treasurer sold the property to the respondent for the sum of $84.60 and issued a certificate of sale therefor. Thereupon the appellant, claiming that the assessment and sale were invalid, brought suit to quiet his title. Being decided adversely to him he appealed to this court, giving the usual bond for costs and disbursements. While the appeal was pending here, the appellant, fearing that the time for re *70 demption might elapse before the appeal could be heard, paid the auditor of the city of Portland, under protest, the amount of the assessment, costs and penalties, and the respondent moved to dismiss the appeal. In an opinion by Mr. Chief Justice McBride, it . was stated that the redemption under the circumstances under which it was made was not. voluntary and, as. shown by the protest accompanying it,, was not made with any intent to waive appellant’s rights on appeal: Citing Edwards v. Perkins, supra; Moores v. Moores, 36 Or. 261 (59 P. 327); Eilers Piano House v. Pick, supra, and cases from other states. Chief Justice McBride remarked: “This holding is not to be confounded with those cases holding that a party voluntarily accepting the benefits of a decree or voluntarily doing some act inconsistent with his contention on the appeal is precluded from maintaining such appeal, or with those cases.in which the entire subject matter of the appeal' having disappeared there would be nothing left which3 a reversal of the decree could affect. In the case at bar the appellant in the event of reversal would be entitled by appropriate proceedings for that purpose, to a restitution of the moneys which he was compelled to pay to prevent a deed to his property being issued by the city treasurer: McFadden v. Swinerton, 36 Or. 336, 354 (59 P. 816, 62 P. 12).” In McFadden v. Swinerton, 36 Or. 336 (59 P. 816, 62 P. 12), in passing upon a motion to modify the decree, former Chief Justice Bean referred to the affidavit tending to show that before the appeal was taken the clerk of the court below paid out the fund in' controversy to -several claimants in accordance with the decree of that court. It was held that the right of appeal would not suspend the enforcement of the decree nor justify the custodian of the fund to refuse to disburse it in accordance therewith; that if her *71 money was paid ont before the appeal, the appellants were entitled to recover from the other parties whatever was wrongfully distributed to them; that where a judgment or decree is modified or reversed on appeal the appellant is entitled to restitution of all that is lost under it. See also Metschan v. Grant County, 36 Or. 117, 119 (58 P. 80). In Hoogendorn v. Daniel, 202 Fed. 431, a case from Alaska where the Oregon Code was adopted, Circuit Judge Gilbert, on a motion to dismiss the writ of error, on the ground that the plaintiff in error had paid and satisfied the judgment, said: “The motion must be denied. One who voluntarily pays a judgment is not precluded from taking an appeal therefrom.” Citing cases, among which is Edwards v. Perkins, supra. The executrix, in taking this appeal, filed an undertaking for damages, costs and disbursements, but did not file a stay bond. She resisted the payment of the inheritance tax as far as she could without incurring penalty and interest. The executrix, as such, is not personally interested in this appeal. She is in much the same position as the clerk of the court in the McFadden case above mentioned. Counsel for the movant cites the cases of Johnson v. Crook County, 53 Or. 329 (100 P. 294, 133 Am. St. Rep. 834); Moffitt v. Salem, 81 Or. 686 (160 P. 1152); Barnes v. Ind. Acc. Com., 112 Or. 41 (228 P. 684); Graves v. Ind. Acc. Com., 112 Or. 143 (223 P. 248). The opinions in all of these cases were upon the merits rendered upon a final determination and not upon a motion to dismiss. We follow the holding in Eilers Piano House v. Pick, supra. It does not satisfactorily appear that the compliance by the executrix with the order of the probate court fixing the inheritance tax was not coerced or that it *72 was made with a view of settlement. The executrix, therefore, is not precluded from maintaining an appeal. B. G. Bradshaw and Bert E. Haney, both of Portland (Joseph, Haney & Yeatch, of Portland, on the brief), for appellant. David S. Husted, of Portland (I. H. VanWinlde, Attorney General, on the brief), for respondent. Motion to dismiss is denied. Belt, J., concurs in the result.