Nelson v. Smith , 157 Or. 292 ( 1937 )

In addition to those assigned by other members of the court, I think there is another reason why the judgment must be reversed.

As has already been pointed out, there is no statute which authorizes a court of equity to enjoin the defendant in a tort action from transferring his property pending the determination of the action. Nor does a court of equity have jurisdiction to enjoin a transfer merely upon the ground that otherwise a defendant may transfer his property and become execution proof before the action can be determined. If it could be done in this case, then in every case the plaintiff in a law action, where a money judgment is sought, may go into a court of equity and obtain an order restraining the defendant from making any transfer of any property, real or personal, pending the determination of the action.

Certainly, the maxim that where there is a right there is a remedy does not warrant such a procedure. It has been said that the mission of equity jurisdiction is and always has been to supply a remedy either where there is no remedy or the remedy provided by the law is inadequate to the ends of justice in the particular case in hand. As said by Professor Schofield in Constitutional Law and Equity, vol. 2, p. 882:

"* * * So far as a question in equity jurisdiction is concerned, it makes no difference whatever what the subject-matter of the controversy is; the sole point in a question in equity jurisdiction is the existence or adequacy of another remedy provided by the law. As a general proposition, other remedies provided by the law have been found adequate in the past, and are likely to be found adequate in the future, where no question of public or private property rights is involved."

Particularly applicable to this case is the rule of law stated by Mr. Justice Hunt in Rees v. Watertown, 19 Wall. 107, 124, 125 (22 L. Ed. 72), where, speaking for the supreme court of the United States, he said:

"The want of a remedy, and the inability to obtain the fruits of a remedy, are quite distinct, and yet they are confounded in the present proceeding. To illustrate: the writ of habere facias possessionem — is the established remedy to obtain the fruits of a judgment for the plaintiff in ejectment. It is a full, adequate, and complete remedy. Not many years since, there existed in Central New York combinations of settlers and tenants disguised as Indians, and calling themselves such, who resisted the execution of this process in their counties, and so effectually that for some years no landlord could gain possession of his land. There was a perfect remedy at law, but through fraud, violence, or crime, its execution was prevented. It will hardly be argued that this state of things gave authority to invoke the extraordinary aid of a court of chancery. The enforcement of the legal remedies was temporarily suspended by means of illegal violence, but the remedies remained as before. It was the case of a miniature revolution. The courts of law lost no power, the court of chancery gained none. The present case stands upon the same principle. The legal remedy is adequate and complete, and time and the law must perfect its execution."

Certainly no one can contend that the remedies provided by law in tort actions have been found inadequate in the past or are likely to be found inadequate in the future, and, in such actions, it is no part of the equity jurisdiction to enjoin the transfer of property pending the determination of such actions so as to enable the plaintiff to obtain the fruits of his remedy, upon the mere ground that the remedy provided by law is inadequate.

Professor Pomeroy, in his work on Equity Jurisprudence, vol. 1, 3 Ed., section 62, in the footnote on page 66, quotes fromJohnson v. Crook, L.R. 12 Ch. Div. 639, 649, the language of Jessel, M.R., who, he says, is one of the most clear-headed and able judges of this generation, as follows:

"* * * when they (referring to equity judges) state what the law is, they do not mean, as might have been said two or three centuries before, that that was law which they thought ought to be law."

This ought to sufficiently answer the suggestion which has been made that, because of the defendant's nonresidence and the inability of the plaintiff to get personal service in the law action upon the defendant, equity will supply a remedy by enjoining the nonresident defendant from transferring his Oregon property pending the determination of the law action. If there is such a rule of law, it can come only from some statute and not from a new principle of equity created by a court of equity because of some supposed necessity.

As has already been pointed out, our statute does not permit the attachment of property in a tort action, regardless of whether the defendant is a resident or a nonresident, and regardless of whether or not the defendant has property within the state. Nor is there any principle of equity which permits a court of equity to enjoin the transfer of property pending the determination of a tort action, or in aid of such action. The injunction, therefore, was issued by the circuit court for Multnomah county, restraining the defendant from transferring his property pending the determination of the action at law then pending in the circuit court for Clackamas county, without authority and is void, and this affords one of the principal reasons which I think requires the reversal of this judgment. The plaintiff obtained an injunction without any authority of law whatever for doing so. His purpose necessarily was to wrongfully tie up the defendant's property until he could be compelled, in order to have the property released, to go into court and move for the dissolution of the injunction. Whether intended so or not, it was a fraud upon the courts and brought the defendant into court and caused him to become subject to the jurisdiction of the court, and it was equivalent to bringing the defendant into court under subpoena or process and came within the principle that when a nonresident comes into a state to defend his suit he is usually exempt from service of process. See Brown on Jurisdiction, 2 Ed., section 42, and cases there cited. This principle I think should be applied in the instant case.

In Belknap v. Charlton, 25 Or. 41 (34 P. 758), a writ of attachment had been issued and certain moneys belonging to the defendants had been attached but no summons in the action was served upon the defendants. Some three months after the action was commenced and the writ of attachment had been served, the defendants appeared specially by their attorney for the purpose of applying to the court to discharge the attachment because the action had been commenced in the wrong county, and because no service had been made upon them, which motion being overruled, judgment was rendered against them by default. The court held that their appearance was no waiver of process. In disposing of that question the court, among other things, said:

"* * * Nothing less than the express language of a statute, or the necessary implication therefrom, or the overbearing weight of authority, will justify a court in holding that a defendant in an action commenced in the wrong county, in violation of section 44 of the Code, could not appear and apply for the discharge of an attachment against his property, for irregularities, without being required to submit himself to the jurisdiction of the court for the purpose of the entire action; and it is not material in such case, whether the motion happened to be well founded or not, but the question is, did it go to the merits, or was it based upon some technical grounds supposed to be sufficient to render the attachment invalid. If a defendant may not thus appear and resist what he supposes to be a wrongful attachment without subjecting his person to the jurisdiction of the court, he must either suffer his property to be held under a pretended attachment for an indefinite time, or waive a statutory right to be sued in the county where he resides or may be found. This the law will not exact or require."

In the instant case, the defendant was compelled to come into court to free his property from an unauthorized order made by the court; in other words, he was enticed into court by a trap, whether intentional or otherwise, set for him by the plaintiff, and the principle applied by Mr. Justice BEAN in Belknap v.Charlton, supra, should be applied in this case. Having been brought into court and having, by the rulings of the court and the action of the plaintiff, been compelled to submit himself to the jurisdiction of the court, if this judgment can be sustained, it will be a denial of justice.

In this connection, it should be borne in mind that the automobile which caused plaintiff's injuries was owned and operated by one Neil Stewart, who was driving it at the time, and it was his action which caused the injuries complained of. It was alleged that the defendant was an occupant of the car and that both he and Stewart were intoxicated at the time, and, while plaintiff was attempting to arrest them, the injuries were sustained. It is also alleged that when arrested and while the plaintiff was standing on the running board of their car, this defendant said to Stewart: "To hell with the officer, let's go", and Stewart started up the car and crushed the plaintiff between the side of the automobile and a telegraph pole. If these allegations are true, they evidence an evil disposition upon the part of the defendant but the law measures the conduct of men by the same standard and protects the legal rights of a bad man the same as it does those of one who is good. The defendant's legal rights should not be disregarded because of the conduct referred to, if he was in fact guilty of the things charged against him. Bad cases are said to make bad laws. Such should not be the result in this case. The questions involved here are so fundamental and far-reaching in their character that they ought not to be controlled by any prejudice against the defendant or by the natural sympathy which all men feel for an officer who is injured in the discharge of his duty.

For these reasons and because of those offered by Mr. Justice ROSSMAN in his dissenting opinion, with which I concur, I also dissent from the majority opinion.