Hodgson v. Martin

MOORE, J. The defendant commenced an action of forcible entry and detainer against the plaintiffs, who having answered, showing they had no legal defense, filed the complaint herein, in the nature of a cross-bill in equity, setting forth their alleged right to the possession of the demanded premises pursuant to which they had made thereon valuable improvements and furnished the defendant board and lodging amounting in all to $1,500, no part of which had been paid. The answer herein denies the material averments of the complaint, and for a further defense alleges that the plaintiffs’ use and occupation of the land equaled the worth of ■ the improvements thus made and the value of the board and lodging so furnished. A reply put in issue the allegations of new matter in the answer, and the cause being tried resulted in a decree awarding to plaintiffs, as the value of the improvements, $200 and imposed that sum as a lien on the premises, which were ordered to be sold to satisfy the burden declared. A supplemental decree permitted the defendant to deposit with the clerk of the lower court the money so awarded and thus avoid a forced sale of the land. From the latter decree the plaintiffs appealed. Their undertaking therefor was also subscribed by the American Surety Company, a corporation, to indemnify which the plaintiffs assigned to it all their right to the money so left with the clerk, but this sum was not withdrawn from his custody. The [107] defendant’s counsel move to dismiss the appeal on the ground that the assignment was an acceptance of the fruits of the decree thereby preventing an appeal therefrom. 1. The plaintiffs could have accepted the money thus deposited and relinquished all interest in the subject matter of the litigation. So, too, if the answer had admitted that $200 was due them in any event, and this sum had been voluntarily paid, they could legally have accepted the money without prejudicing their right to an appeal: Portland Construction Co. v. O’Neil, 24 Or. 54 (32 Pac. 764). The sum so deposited was not freely paid but was coerced by the decree. The plaintiffs’ right to the money is not unquestioned for the final determination thus reached may be reversed or modified on appeal, so that their interest in the money may be ultimately lost or diminished and the indemnity undertaken to be given the American Surety Company rendered inadequate or valueless. The failure of the surety company to realize on the assignment in case of a reversal of the decree might not render the undertaking on appeal nugatory. But however this may be, a practice should not be sanctioned which would compel a party against his will to deposit a sum of money for the benefit of the adverse party and then allow the latter to avail himself of the deposit to enable him further to litigate the cause. 2. When a party gives the required notice of appeal and through mistake omits to file a proper undertaking therefor, permission may be granted to supply such-defect: Section 550, subd. 4, L. O. L. The plaintiffs having no right to the money so deposited until the sum is accepted by them could not legally assign any interest therein, and this being so the appeal will be dismissed unless within 30 days they execute and serve [108] a new and sufficient undertaking in the sum originally specified and file the bond in this court. Appeal Conditionally Dismissed.