Taylor Inv. Co. v. Deatsman

Opinion by Mr. Chief Justice McBride. 1. The decree for costs against the Taylor Investment Company in the original case was void. Costs are a mere incident or consequence which follow a decree for some other relief, and cannot alone furnish the basis of a substantive judgment. Freeman, Judgments (3 ed.) § 16; Stewart v. Corbus, 15 Or. 68 (13 Pac. 647) ; Warren v. Shuman, 5 Tex. 441, 450. The' default of the defendant being entered, the cause was then ripe for a final decree thereon; but no relief was given Deatsman as to the Taylor Investment Company, and no adjudication as to the respective rights of that company and Deatsman was ever made. That company is not enjoined from making any use of the property it may see fit. Its contract with the telephone company is not declared illegal or canceled, and, except for the purpose of getting costs out of it, and exempting the telephone company [389] therefrom, it is difficult to see any reason why it should have been joined in the suit in the first instance. 2. By the demurrer it is conceded to be a fact that Deatsman, who was the execution plaintiff and purchaser of .the property, instructed the sheriff not to search for personal property out of which to satisfy the execution,' but to levy upon the realty in the first instance, and that the sheriff complied with this suggestion, and levied upon and sold the real property in question in spite of the fact that the Taylor Investment Company had ample personal property out of which the execution might have been satisfied. Subdivision 1 of Section 215, L. O. L., requires the sheriff to resort first to the personal property of the judgment debtor; and for the plaintiff and purchaser at the execution sale to induce him to ignore this requirement and sell real property is a fraud which would in itself justify a court of equity in setting aside a sheriff’s deed made pursuant to such a sale. The decree of the circuit court is affirmed. Affirmed.