Opinion
Argued November 3, 1925
Injunction allowed December 30, 1925
From Josephine: C.M. THOMAS, Judge.
For the motion there was a brief over the name of Messrs. Reames Reames, with an oral argument by Mr. Charles W. Reames. Contra, there was a brief over the names of Mr. W.T. Miller and Mr. A.C. Hough, with an oral argument by Mr. Hough.
IN BANC.
This cause is here upon the application of the defendants, who are appellants for an injunctive order staying proceedings pending the appeal. The plaintiffs who are respondents have appeared specially opposing the motion on the ground that the attempted appeal was prematurely taken. The appeal is from a decree in favor of the plaintiffs appointing a receiver for the defendant corporation with directions to the receiver to take possession of all the property of said defendant, sell the same and hold the money subject to the order of the court. The decree was rendered on the tenth day of October, 1925. At the request of the judge rendering the decree the journal entry was sent by the clerk of the court of Josephine County to the judge at Jacksonville. Incorporated in the journal entry is a provision to the effect that said decree would not become effective until five days thereafter. At the expiration of that period and on the fifteenth day of October, the judge indorsed on the decree an order staying execution for seven days. The journal entry was not spread on the journal until the twenty-sixth day of October, 1925. In the meantime the attorneys for defendants gave notice of appeal to this court. At that time they did not know that the journal entry had not been spread upon the journal. The attorneys for defendants reside at Medford and had a copy of the decree certified by the clerk of the court for Josephine County to the effect that the decree was rendered and entered on the bar docket on the tenth day of October, 1925. The notice of appeal was filed October 15, 1925, and the undertaking six days later. The transcript was filed in this court October 22, 1925. The ground for opposing the application for a stay of execution pending the appeal to this court is based on Section 550, subdivision (5), Or. L., which provides that said notice shall be given within sixty days from the entry of the judgment, order or decree appealed from.
INJUNCTION ALLOWED.
When the court rendered its decree on the tenth day of October, 1925, and that decree was entered by the clerk on the bar docket, the decree became final unless set aside. The certified copy of the decree attached to the notice of appeal shows that the decree was so rendered and entered on the journal on the tenth day of October, 1925. Any time after that date either party had the right to appeal therefrom. Spreading the journal entry on the journal is purely a ministerial act and the failure of the clerk to promptly spread the journal entry on the journal does not change the finality of the decree or prevent an appeal therefrom.
No objection was made in the Circuit Court to the sufficiency of the undertaking on appeal. Ordinarily a transcript should not be filed in this court until time for objecting to sufficiency of the surety has expired: Section 550, subd. (4), Or. L. Filing the transcript while objections to the surety on the undertaking were pending before the Circuit Court was held to be premature in Graf v. Pearcy, 76 Or. 488 ( 149 P. 532). But where no objections to the surety were made, and application was made in this court for a restraining order pending appeal, filing a transcript in this court before expiration of the time allowed for excepting to the sureties was held not to be premature in Grand Prize Hydraulic Mines v. Boswell, 83 Or. 1 ( 151 P. 368, 162 P. 1063).
Another question raised in opposition to the motion was the sufficiency of the undertaking on appeal. The attorneys for the appellants applied to the circuit judge for an order fixing the amount of the undertaking for the purpose of staying execution pending the appeal. The difference of opinion about the amount of that undertaking between the circuit judge and the attorneys for appellants resulted in the appellants filing an undertaking for the purpose of staying execution, under Section 551, subdivision 1. The surety on the undertaking is a surety company authorized to become sureties on such obligations in this state. It is not limited as to the amount. We believe that it amply protects the plaintiff. The nature of the litigation is such that the property involved would in all probability be destroyed pending the appeal. The property is a stock of merchandise and the decree directs the receiver to take possession of it and sell it, pay the debts of the defendant corporation and distribute ultimately any surplus remaining among the stockholders. We believe the appellants are entitled to have the property remain as it is until the appeal shall have been determined in this court: Helms, Groover Dubber Co. v. Copenhagen, 93 Or. 416 ( 177 P. 935); Grand Prize Hydraulic Mines v. Boswell, 83 Or. 1-4 (151 P. 368, 162 P. 1063).
For these reasons the application for an order staying proceedings pending the appeal is granted.
INJUNCTION ALLOWED.
Mr. Justice BURNETT took no part in this opinion.