Fluhrer v. Bramel , 158 Or. 694 ( 1938 )

Motion to dismiss appeal denied on petition for rehearing November 16, 1937 ON PETITION FOR REHEARING (73 P.2d 265) On motion of respondent Fluhrer, an order was issued dismissing the appeal in the above entitled cause taken by the defendant Bramel, insofar as said defendant appeals from the decree in favor of plaintiff, for the reason that said defendant has, since the entry of said decree in the lower court, acquiesced therein.

The decree appealed from rescinded the contract between plaintiff and defendant Bramel for the sale of a certain service station situated at 8140 S.W. Macadam Avenue, Portland, Oregon, on land which defendant W.E. Bramel held on a lease. The cause was dismissed mainly for the reason that W.E. Bramel had, as it appeared at that time, acquiesced in the decree by leasing the service station to Wolfer's Automotive Service, Inc., after the rendition of the decree appealed from.

Upon a petition for rehearing it is shown that the lease from W.E. Bramel to Wolfer's Automotive Service, Inc., was made before the decree of the lower court was rendered in the above entitled case. For this reason the order dismissing the appeal taken by Bramel, insofar as said defendant appeals from the decree in favor of plaintiff, will be set aside.

It is also claimed that Bramel, the appellant, had received rents for a time for the lease of the service station. In view of the fact that the circumstances relating to the service station have a bearing upon the merits of the case, which we do not decide at the present time, the former opinion is reversed and the motion to dismiss the appeal will be denied for the present and the matter will be postponed until the final hearing of the case when the motion to dismiss may be renewed and the whole matter may be presented.

It is so ordered.

LUSK, J., took no part in the consideration of this motion.