Wolfer v. Hurst

Decided 10 April, 1905. ON Motion to Dismiss Appeal. Mr. Justice Moore delivered the opinion of the court. This is a motion to dismiss an appeal. An action of forcible entry and detainer was commenced in a justice’s court of Marion County, to recover the possession of about 80 acres of land, and, the cause being at issue, was tried, resulting in a judgment for plaintiff as demanded in the complaint; and defendants appealed to the circuit court for that county, giving an undertaking therefor, and also an undertaking for the payment to plaintiff of twice the rental value of the premises from the rendition of the judgment until final determination of the action, if such judgment should be affirmed on appeal. The appeal was tried in the court to which the cause was taken, and a judgment for the restitution of the premises was rendered against the defendants, who on January 10,1905, served and filed a notice of appeal, and gave and filed an undertaking therefor, and 18 days thereafter, without notice to plaintiff, secured an order of that court, but of a different department, fixing the amount of a stay bond, which they also gave, conditioned that they would not commit or suffer any waste, and if the judgment, or any part thereof, should be affirmed, they would pay the value of the use of the premises from the time of taking the appeal until the redelivery of the possession of the land, not exceeding the sum of $250. The bill of exceptions having been settled, certified and sent up’, the motion referred to was interposed on the grounds that this court did not have jurisdiction of the cause, for that no undertaking for the payment of the rent of the premises was given within the time prescribed, and that no right of appeal exists from judgments rendered in actions of this kind. 1. Considering the objections to the jurisdiction in the order indicated, the statute relating to appeals in actions of forcible entry and detainer is as follows: [158] “If judgment be rendered against the defendant for the restitution of the real property described in the complaint, or any part thereof, no appeal shall be taken by the defendant from such judgment until he shall, in addition to the undertaking now required by law upon appeal, give an undertaking to the adverse party, with two sureties, who shall justify in like manner as bail upon arrest, for the payment to the plaintiff of twice the rental value of the real property of which restitution shall be adjudged from the rendition of such judgment until final judgment in said action, if such judgment shall be affirmed upon appeal”: B. & C. Comp. § 5754. An examination of the section of the statute quoted will show that the undertaking required to be given for the payment of the rent stipulates that the term for which the stay bond shall operate as indemnity for the use of the demanded premises is from the rendition of the judgment in the justice’s court until final judgment is given in the action, if such judgment is affirmed. The term “final judgment” is generally used as a synonym for an appealable order, that is, one which not only affects a substantial right, but one which, in effect, determines the action in the court pronouncing the judgment: B. & C. Comp. § 547; State v. Brown, 5 Or. 119; Basche v. Pringle, 21 Or. 24 (26 Pac. 863). The term “final judgment,” as used in the statute under consideration, cannot apply to the determination of the cause in .the justice’s court, for the language assumes that such judgment has been given therein, and provides that, on an affirmance thereof, the payment to the plaintiff of .twice the rental value of the land of which restitution has been awarded shall be guaranteed by the terms of the supplementary undertaking. A fair interpretation of the phrase “until after final judgment in said action” means that the undertaking stipulating for the payment of the rent shall afford compensation to the plaintiff for the use of the premises from the time judg [159] ment is rendered in the justice’s court for the restitution of the land until the cause is finally determined on appeal. Such a construction of the statute would make the undertaking given for the payment of twice the rental value of the land effectual for all purposes until the judgment rendered in the justice’s court becomes final either by an affirmance or a reversal thereof in the circuit or supreme court. The object of the statute requiring the giving of a stay bond was evidently not designed to impose needless burdens upon the defendant when he appeals from a judgment rendered against him in a justice’s court for the restitution of land of which he is in possession, but to secure to the plaintiff in such action the payment of the rent until the right to the possession becomes final, and, as the statute in effect so provides, no necessity existed for the giving of an undertaking to stay the enforcement of the judgment rendered in the circuit court, the undertaking given therefor in the justice’s court as a condition precedent to the right of appeal being sufficient for that purpose. 2. The right to appeal from a judgment rendered in a justice’s court in an action of forcible entry and detainer is not free from doubt. The section of the statute herein-before quoted is the only provision directly relating thereto. The Legislative Assembly of the Territory of Oregon passed an act January 12, 1854, creating courts of justices of the peace, conferring on that tribunal jurisdiction of such actions, and granting appeals from judgments rendered therein : Laws 1855, p. 286 et seq. An act' was passed October 11, 1862, conferring upon county courts exclusive jurisdiction of actions of forcible entry and detainer, and allowing appeals from judgments given in such actions: Deady’s Gen. Laws 1854-64, §§ 868-875. Justices’ courts were invested with jurisdiction of such actions by an act passed October 24, 1866 (B. & C. Comp. § 5745 etseq.), [160] and the only right to review a judgment rendered therein is to be implied from the section of the statute which provides that no appeal shall be taken by the defendant, until he shall have given an undertaking to pay to the plaintiff twice the rental value of the premises of which restitution has been awarded, in addition to the ordinary undertaking for an appeal: B. & C. Comp. § 5754. In Thompson v. Wolf, 6 Or. 308, the court, in construing the act of October 24, 1866, and referring to a provision thereof now incorporated in B. & C. Comp, as section 5754, though the question was not involved, says: “By section 10, an appeal is allowed and must be taken to the circuit court.” The dictum thus announced has been observed in the trial of appeals in this court in actions of forcible entry and detainer commenced in justices’ courts in the following cases: Taylor v. Scott, 10 Or. 483 ; Harrington v. Watson, 11 Or. 143 (3 Pac. 173 50 Am. Rep. 465); Aiken v. Aiken, 12 Or. 203 (6 Pac. 682); Danvers v. Durkin, 14 Or. 37 (12 Pac. 60); Belfils v. Flint, 15 Or. 158 (14 Pac. 295); Rosenblat v. Perkins, 18 Or. 156 (22 Pac. 598, 6 L. R. A. 257); Hislop v. Moldenhauer, 21 Or. 208, (27 Pac. 1052) 2d Appeal, 23 Or. 119; Smith v. Reeder, 21 Or. 541 (28 Pac. 890, 15 L. R. A. 172); Forsythe v. Pogue, 25 Or. 481 (36 Pac. 571); Twiss v. Boehmer, 39 Or. 359 (65 Pac. 18). The right to appeal from such judgments has never been questioned until quite recently: Heiney v. Heiney, 43 Or. 577 (73 Pac. 1038); McAnish v. Grant, 44 Or. 57 (74 Pac. 396); Dechenbach v. Rima, 45 Or. 500 (77 Pac. 391, 78 Pac. 666). The judgment of an inferior court ought not to be reviewed unless the right to do so is clearly granted by statute; but, where appeals have been unquestionably tried for such a length of time as to establish a method of procedure, the rule promulgated should not be changed without just cause, resulting from manifest injustice to the parties to actions: Butler v. Smith, 20 Or. 126 (25 Pac. 381); Lewis v. Reeves, 26 Or. 445(38 Pac. 622). For appellants there was a brief over the name of Carson & Cannon, with an oral argument by Mr. Anderson M. Cannon. For respondent there was a brief with oral arguments by Mr. Benjamin Franklin Bonham and Mr. Carey Fuller Martin. It is difficult to discover how any unfairness can arise from reviewing a judgment given in a justice’s court in an action of forcible entry and detainer, except the possibility of a reversal, which would reasonably show that such judgment was erroneous, and therefore unjust. The rule to be extracted from the cases decided by this court, to which attention has been called, is that an appeal from a judgment given in a justice’s court in an action of this kind may be instituted and prosecuted to final determination by either party; but, if taken by the defendant, he must, in addition to the undertaking therefor, also give an undertaking for the payment to the plaintiff of twice the rental value of the premises of which restitution has been awarded. As the right to an appeal in such cases is fairly to be inferred from the statute, and as the cause of justice would, in our opinion, be promoted by continuing the practice so long observed, the motion to dismiss the appeal is denied. Motion Overruled.