American Surety Co. v. Hattrem , 138 Or. 358 ( 1931 )

Motion to recall mandate denied January 12, 1932 ON MOTION TO RECALL MANDATE (6 P.2d 1087) In Banc. Counsel for respondent moves to recall the mandate for the purpose of correction, so that a judgment may be entered against Josephine R. Hattrem and her sureties for the sum of $873.23.

This suit was instituted to set aside a fraudulent conveyance made by defendant Weber A. Hattrem to Josephine R. Hattrem, his wife, in order to subject the real property conveyed to the payment of said judgment, the sum of $4,870.97, previously rendered by the Circuit Court of the State of Oregon for Marion county, against Weber A. Hattrem and also to obtain judgment against Weber A. Hattrem for certain expenses and for costs. The circuit court entered a decree setting aside the conveyance subjecting the real property to the payment of $4,870.97, and also rendered a judgment against Weber A. Hattrem for $873.23 and for $103 costs. Josephine R. Hattrem appealed from the decree and judgment of the circuit court as against her. Weber A. Hattrem did not appeal. No money judgment was rendered in the circuit court against Josephine R. Hattrem. Mrs. Hattrem filed an undertaking on appeal which she and her two sureties executed, which is in the following words:

"Now, therefore, we, Josephine R. Hattrem, appellant, and William Martin of the County of Multnomah, State of Oregon, and J. Guy Strohm, of the County of Multnomah, State of Oregon, sureties, undertake as follows: that the appellant will pay all damages, costs and disbursements which may be awarded against her on appeal.

"And to stay further proceedings and execution on said decree so appealed from, we William Martin and J. Guy Strohm, sureties, in consideration thereof, and of the premises, do hereby undertake that if said decree appealed from, or any part thereof, be affirmed, the appellant will satisfy it so far as affirmed."

Section 7-504, Oregon Code 1930, provides for the undertaking on appeal, and reads:

"but such undertaking does not stay the proceedings, unless the undertaking further provides to the effect following: —

"1. If the judgment or decree appealed from be for the recovery of money * * * that if the same or any part thereof be affirmed, the appellant will satisfy it so far as affirmed."

Section 7-513, subdivision 4, provides:

"If judgment of decree be given against the appellant, it shall be entered against his sureties also, in like manner and with like effect, according to the nature and extent of their undertaking."

Mrs. Hattrem and her sureties undertook to pay the decree against her in so far as it was affirmed. There was no money judgment against Josephine R. Hattrem from which she appealed. The language of the undertaking, "if said decree appealed from, or any part thereof, be affirmed, the appellant will satisfy it so far as affirmed," means that the judgment against the appellant, in so far as affirmed against the appellant, Josephine R. Hattrem, will be satisfied. There being no judgment against appellant Mrs. Hattrem in the trial court from which she appealed and no money judgment against her having been affirmed on appeal, she is not required to pay the money judgment against Weber A. Hattrem in the sum of $873.23, as contended for by respondent upon the motion to recall the mandate.

The judgment for expenses of $873.23 against Weber A. Hattrem stands in exactly the same condition as the judgment against Weber A. Hattrem for $4,870.97. The judgment and decree of the circuit court was not stayed as against Weber A. Hattrem. There was nothing during the pendency of the appeal to prevent the enforcement of the judgment as against Weber A. Hattrem, but only as against Mrs. Hattrem.

The motion to recall the mandate must therefore be denied. It is so ordered.