Electrical Products Corp. v. Ziegler Drug Stores, Inc.

*269 BEAN, C. J. This is a motion to dismiss the appeal. On April 29,1929, plaintiff, Electrical Products Corporation of Oregon, entered into a contract with Ziegler Drug Stores, Inc., a corporation, to install and lease to said Ziegler Drug Stores certain advertising signs known as “Claude Neon Sign” and to maintain and service said signs. The facts are stated substantially as follows: The Ziegler Drug Stores operated 15 stores in the city of Portland, and this contract applied to these various stores. The contract contained a provision to the effect that, if there should be a default on the part of the Ziegler Drug Stores under the contract and the Ziegler Drug Stores should become guilty of a breach of the lease agreement, then the rights of the Ziegler Drug Stores should cease and terminate, and as liquidated damages there would be due the plaintiff a sum equal to 90 per cent of all installments of rent for the remainder of the period specified in the lease agreement. The Ziegler Drug Stores defaulted and went out of business prior to the time that all the installments under the lease agreement were paid, and thereafter the plaintiff brought an action against the Ziegler Drug Stores upon the theory that there was due and payable to plaintiff from the Ziegler Drug Stores the liquidated damages, 90 per cent of the remaining unpaid installments under the contract. Upon the trial in the circuit court, judgment was entered against the Ziegler Drug Stores on plaintiff’s theory of liquidated damages. An appeal from the judgment was taken to the supreme court, as reported in 141 Or. 117 (10 P. (2d) 910, 15 P. (2d) 1078). The court declined to accept the plaintiff’s theory that the provision of said contract was for liquidated damages, but that said provision was in the nature of a forfeiture *270 and therefore the plaintiff could not recover under that theory of the case, and the case was reversed and remanded for a new trial. Upon retrial of the case the plaintiff adopted the theory of general damages, and it appeared from plaintiff’s pleadings that it was asking judgment for the sum of $472, the accrued and unpaid installments under the lease contract for November and December of 1930, and January of 1931, and for a further sum as damages for the breach of the contract by the Ziegler Drug Stores. Judgment was entered in the cause for $472, accrued and unpaid monthly installments, and the sum of $8,838.82, as damages for breach of the contracts by the Ziegler Drug Stores, and for attorneys’ fees, costs and disbursements. On October 30, 1934, plaintiff filed in the circuit court certain second amended allegations against the garnishee herein named, and other garnishees. Thereafter, and within time, Lee H. Witty, the garnishee, filed a motion against said allegations to strike therefrom all of the allegations with reference to any sums of money allowed in the judgment in the Ziegler Drug Stores case, pertaining to damages and attorneys ’ fees. The circuit court allowed respondent Witty’s motion to strike the parts moved against from plaintiff’s second amended allegations. This order was made June 22, 1936. The garnishee states that no appeal has been made from this order and more than 60 days have elapsed since, the entry thereof. Thereafter, on July 1, 1936, plaintiff moved the court for judgment in the sum of $9,043.22, and the further sum of $2,000, as attorneys’ fees,- and a further sum of $24 as costs- and disbursements for the reason that said garnishee was given five days from June'22,'1936, within which to plead, and *271 more than five days had elapsed and the garnishee had not pleaded against plaintiff’s second amended allegations with the portions thereof stricken by order of the court. Thereafter, on August 18, 1936, pursuant to plaintiff’s said motion for judgment on the pleadings, the court entered an order against the garnishee herein for the sum of $472. The garnishee moves the court to dismiss plaintiff’s appeal for.the following reasons: (1) That the judgment appealed from is not an erroneous or void judgment. Said judgment was entered upon appellant’s motion for a judgment upon the pleadings and was entered in conformity with the pleadings at the time of the submission of said motion for judgment; (2) that appellant’s assignment of error No. 1 has no relative connection with assignment of error No. 2; “That assignment of error No. 1, to wit, the claimed error in the granting of the garnishee’s motion to strike certain parts of plaintiff’s allegation, is a final order from which appellant was entitled to appeal, and that said appellant has not appealed from said order and by filing its motion with the court for judgment on the pleadings has waived all the matters contained in assignment of error No. 1;” (3) that there is nothing now before the court showing any error of the trial court in the determination of this case. The third reason stated seems to pertain more particularly to the merits of the case, with which we do not deal upon the motion to dismiss. Section 7-501, Oregon Code 1930, as far as applicable to the present case, provides: “A judgment or decree may be reviewed on appeal as prescribed in this.chapter and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judg *272 ment or decree therein, or an interlocutory decree in a suit for the partition of real property, * * * or a final order affecting a substantial right, and made in a proceeding after judgment or decree, * * A garnishment proceeding partakes of the nature of, and is in all essentials, a separate action or suit against the person garnisheed: Keene v. Smith, 44 Or. 525 (75 P. 1065); Northwest Adjustment Co. v. Akers, 145 Or. 341 (27 P. (2d) 889). Garnishment proceedings are special proceedings after judgment. The allegations correspond to the complaint in a suit or action. It has never been permissible to appeal from an order striking out a portion of a complaint before the final judgment in the case. The proper proceeding is to terminate the ease by a final judgment and appeal from the judgment and thereby bring up the interlocutory order. The order striking out a portion of plaintiff’s allegations in regard to damages no doubt affected the substantial right of the plaintiff, but the proceedings on their face show that it was not a final order. The matter was still before the court and a final judgment was rendered thereafter for $472. During the intervening time, between the order to strike out a portion of the allegations and the judgment, the action was not determined so as to prevent a judgment therein, but necessitated a judgment. In Winters v. Grimes, 124 Or. 214 (264 P. 359), we read: “One of the tests in determining whether a judgment or decree is final is: ‘If no further action of the court is required to dispose of the cause, it is final.’ Other tests are: Is the order or decree one which determines the rights of the parties so that no further questions can arise before the court rendering it, except such as are necessary to be determined in carrying it into effect, or is the judgment or decree ‘one which con- *273 eludes the parties as regards the subject-matter in controversy in the tribunal pronouncing it?’ ” The trial court concluded the matter by rendering the judgment for $472, thereby concluding the parties as regards the subject matter there in controversy. Until such final judgment was rendered the matter was in the breast of the court. It would have been possible for the court to have permitted the plaintiff to amend his allegations, or the court could, if it had seen fit, change its decision and render the judgment for a larger amount. The order sustaining the motion to strike certain portions of plaintiff’s allegations is not final in any sense of the word; neither is it an interlocutory order of the kind from which an appeal will lie: § 7-501, Oregon Code 1930; Hubbard v. Olsen-Roe Transfer Co., 101 Or. 168 (199 P. 187); La Grande v. Portland Public Market, 58 Or. 126, 134 (113 P. 25); 2 R. C. L. 44, § 26; 3 C. J. 446, § 259; 4 C. J. S. 190, § 95. The next contention is that plaintiff, by asking for a judgment on the pleadings, waived his right to appeal. To this contention we are unable to accede. It was about the only thing that plaintiff could do to wind up the case and get it in shape so that it could appeal. A waiver has been defined as a voluntary and intentional relinquishment or abandonment of a known, existing legal right: 67 C. J. 289, § 1. Plaintiff did not evince any intention to relinquish the right to appeal and it could hardly be called a voluntary act, having a judgment entered for less than the claim, under the circumstances. We think plaintiff had a right to appeal from the judgment herein. The motion to dismiss the appeal is denied. *274 Ralph B. Herzog, of Portland (Carey Martin, of Portland, on the brief), for appellant. R. G. Bradshaw, of Portland (Joseph, Veatch So Bradshaw, of Portland, on the brief), for respondent.