Miller v. Shute

Mr. Justice Slater delivered the opinion of the court. 1. From an inspection of the pleadings and the decree it is apparent that the purpose of the suit, so far as it seeks to enjoin the sale of the plaintiff’s property seized under the alias execution, was rendered wholly useless through the surrender of the property by the sheriff to the plaintiff, which was evidently done under the authority conferred by Section 236, B. & C. Comp., and by the latter’s failure to redeliver it upon the day of sale. Just when this took place, with relation to the filing of the complaint, the record does not disclose, but that it did take place is admitted, and it is apparent that Miller failed to redeliver the property to the sheriff at the time and place of sale, for plaintiffs in the writ have attempted in this suit to secure a personal judgment against J. W. — 608 — York, the surety in the undertaking for the balance due upon the decree, but we do not know of any law to support such proceedings under the facts of this case. We are referred by defendants’ brief to Section 309, B. & C. Comp., amended by Chapter 193, Sess. Laws 1907, p. 356, as authorizing the entry of judgment against York as surety in such undertaking, but that section is a part of the civil procedure under attachment proceedings, and has no application to the law of executions upon judgments or decrees. ■ 2. When the sheriff surrendered the property to the plaintiff, and the latter failed to redeliver the same, according to the terms of the undertaking, the sheriff’s authority, under the execution, was gone. It then became functus officio, and the plaintiffs in the writ were remitted to their action on the undertaking, authorized by Section 236. 3. It is not averred that the sheriff was attempting to make any further levy under the writ, or was attempting to sell the property, which had been surrendered. It would therefore be idle ceremony to prohibit the doing of something not threatened or attempted to be done. For the same reason, the judgment against York was unauthorized by law, and is void, but he is not a party to this suit. He is not complaining, and, until he does, this court will take no notice thereof. 4. It is quite clear also that when in the original suit, the records having been lost and not restored, the trial court, aided by the recollection of plaintiff’s counsel, relied upon its memory as to the issues raised by the pleadings, made findings and entered a decree, its act was at least irregular, and its decree voidable, if not void; and upon proper and seasonable application by opposing counsel to the court rendering the same such decree should be set aside. When the original pleadings filed in a case have been lost or destroyed, it is necessary — 609 — that copies of such pleadings should be substituted (31 Cyc. 598), and under such circumstances, in an equity suit, the court cannot regularly proceed to trial or to the entry of a judgment or decree without first restoring the original record, or supplying the omission by substitution of substantial copies. If this is not done, no decree can be rendered in favor of plaintiff, but the suit must be dismissed. Glover v. Rainey, 2 Ala. 727; Groch v. Stenger, 65 Ill. 481; Grimison v. Russell, 11 Neb. 469 (9 N. W. 647). 5. Treating this as a mere irregularity, rendering the decree voidable, no legal foundation is furnished for relief by an independent suit to set it aside, or enjoin its enforcement; for “it is well settled that where a court in which a judgment or decree is rendered has jurisdiction of the subject-matter and of the parties, equity has no jurisdiction to enjoin such judgment or decree for errors or irregularities in the proceedings leading thereto or in the judgment or decree itself, and it is altogether immaterial that the judgment or the decree was unjust or that the error was such as to warrant a new trial.” 16 Am. & Eng. Enc. Law (2 ed.) 389; Nicklin v. Hobin, 13 Or. 406 (10 Pac. 835) ; George v. Nowlan, 38 Or. 537 (64 Pac. 1). 6. But, considering the decree as void, for the reasons alleged as contended by plaintiff, the court rendering it has the power to vacate it (Conant’s Estate, 43 Or. 530: 73 Pac. 1018), and the plaintiff herein, having invoked the power of that court by motion, under Section 103, B. & C. Comp., which by Section 396, is made applicable to suits in equity, he is bound to pursue that remedy to a final determination, which is complete and ample, and and is a bar to a suit in equity for the same relief on the same ground. Thompson v. Connell, 31 Or. 231 (48 Pac. 467: 65 Am. St. Rep. 818) ; Reagan v. Fitzgerald, 75 Cal. 230 (17 Pac. 198). It is admitted by the defendants that such motion was filed by the plaintiff, and that it has — 610 — never been passed upon by the court, but is still pending. ° 7. We come now to the consideration of the breach of the alleged agreement, upon which it is also attempted to base jurisdiction of the court, to enjoin the enforcement of the decree in the former suit. The evidence relied upon by the plaintiff, when considered in connection with the defendants’ positive contradictions, is too indefinite and unsatisfactory to establish the fact that the minds of the parties met in an agreement, that the residue of the personal judgment was to be remitted and canceled by the defendants in consideration of plaintiff’s withdrawal of his objections to the confirmation of the sale. It is admitted by E. B. Tongue, however, when testifying in his own behalf, that “it was agreed there that we could take the confirmation of the sale, and the motion to open up the judgment and correct it was to be left open, * * and the matter has been standing here in that way ever since.” The confirmation of the sale was taken at that time, but, in view of the foregoing admission by the defendants, the waiver by plaintiff of his objections previously made thereto must be confined to the regularity of the proceedings affecting the sale, and cannot be considered as a ratification of the validity or regularity of the decree, as argued by the defendants. 8. This brings us to the question of the relief, asked in the complaint, against the enforcement of that part of the judgment for costs, which covers disbursements; that is, the item of $44.80, in excess of the sum of $10. It is urged by plaintiff that it is void, because the cost bill was not filed within five days after the entry of the decree, ánd was not served. The statute, relative to allowance of costs and disbursements, is prohibitive in character, and expressly declares that no disbursements shall be allowed to any party unless he shall serve on such adverse party or parties as are entitled to notice by law or rules of the court, and files with the clerk — 611 — of such court within five days after the rendition of the judgment or decree a statement with proof of service thereof, if notice to the adverse party is required, indorsed thereon or attached, showing with reasonable certainty the items of all disbursements, etc. Such statement of disbursements, however, may be filed with the clerk at any time after said five days, but not later than the first day of the next regular term of the court, occurring after the expiration of said five days; but in such case such statement must be served on the adverse party or parties. Sess. Laws 1903, p. 209. This statute is a limitation upon the power of the court to allow disbursements, and, unless the record shows upon its face that the requirements of the statute have been met when the judgment for disbursements was entered, it must be held to be void, for it not only lacks jurisdictional authority to support it, but stands in the face of a statutory prohibition against its entry. The decree in question was entered December 10, 1903, .and a cost bill was filed on the 18th of that month, but without any proof of service indorsed thereon, or attached. Not having been filed within five days to meet the requirements of the statute, it must have been served upon the defendant in> the suit or his attorney, and proof thereof should appear indorsed thereon or attached. In this particular it fails, and to that extent the judgment is void. Plaintiff, however, does not allege that any part of the amount charged as disbursements was not, in fact, incurred by plaintiffs therein, or legally taxable as such, or any circumstance tending to show that it would be inequitable to enforce that part of the judgment, as was done in Galbraith v. Barnard, 21 Or. 67 (26 Pac. 1110), and in Rader v. Barr, 37 Or. 453 (61 Pac. 1027), nor has he invoked the interposition of equity to prevent a cloud being cast by the record upon the title to any real property owned by him, but solely to be relived of the judgment. Under such — 612 — circumstances, it is doubtful whether equity will grant the relief prayed for, although the judgment is void. George v. Nowlan, 38 Or. 537 (64 Pac. 1). The right to costs and disbursements is but an incident to' a final judgment, and, as the finality of the decree has been assailed by the plaintiff’s motion to vacate and set it aside, we deem it proper to remit plaintiff to his remedies.in the trial court. The decree is affirmed. Affirmed. Mr. Justice McBride, having presided at the trial of the cause in the court below, did not participate in this decision.