Ranzau v. Davis

Mr. Justice Benson delivered the opinion of the court. The motion is based upon two contentions: (1) That the sureties upon the undertaking’ on appeal are insufficient; and (2) that the appellant did not file a supersedeas bond and that the sheriff has already sold the land upon execution and such sale has been duly confirmed and that therefore there is no substantial controversy upon which this court is called to pass. 1. Considering these contentions in the order indicated, we may say that there is no record before us upon which to base any conclusions as to the sufficiency of the sureties and, if there were, counsel has failed to call our attention to any statutory provision authorizing us to pass upon such question, nor have we in our investigation been able to discover any. The right of appeal is purely statutory and in the absence of legislative authority we must decline to consider the matter. [29] 2. The second contention is also without merit. The suit raises the issue as to whether, under the facts alleged, the plaintiff is the owner of the property and whether, in the event it is found to be his, it can be subjected to the payment of the debt of another. The fact that it has already been so applied does not dispose of it since if this court should reverse the decree the plaintiff would be entitled to restitution. The case of Dimick v. Latourette, 72 Or. 231 (143 Pac. 896), which is relied upon by the defendants is not in point, since in that case a reversal of the decree could not have reached the money already paid. The motion is therefore denied. Motion to Dismiss Denied. Me. Justice Eakin absent. Affirmed July 3, 1917.