Opinion
Argued June 8, 1934
Modified June 26, 1934 Rehearing denied July 24, 1934 Department 2.
Appeal from Circuit Court, Jackson County, EARL C. LATOURETTE, Judge.
E.E. Kelly, of Medford (E.C. Kelly, T.J. Enright, and H.K. Hanna, all of Medford, on the brief), for appellants.
George M. Roberts, of Medford (William M. McAllister, of Medford, on the brief), for respondent.
MODIFIED. REHEARING DENIED.
This suit was instituted by Niedermeyer, Inc., a corporation, to foreclose a chattel mortgage executed by Pacific Record Publishing Company, a corporation, to secure the payment of a promissory note for $6,443.98, dated January 18, 1924, payable five years after date, with interest thereon at the rate of 6 per cent per annum, given by the publishing company to L. Niedermeyer, plaintiff's assignor; less certain credits endorsed on the note by either the plaintiff or its assignor.
This case was consolidated for trial with the case of Niedermeyer, Inc., v. Earl H. Fehl and others, this day decided, and the facts concerning the two proceedings are sufficiently stated in the opinion in that case.
In this suit the decree provided, among other things, as follows:
"It is further considered, ordered and decreed that the defendants, Earl H. Fehl and Electa A. Fehl, do have and recover nothing from the plaintiff by reason of any of the allegations of their several answers, cross-complaints and counter-claims filed in this said suit or in said suit which was consolidated with this said suit, namely, the suit of Niedermeyer, Inc., an Oregon corporation, as plaintiff, v. Earl H. Fehl and Electa A. Fehl, husband and wife, Roy M. Parr, and Eagle Point Irrigation District, a municipal corporation, except as to the allowances which have heretofore been allowed and made upon the promissory note of the Pacific Record Publishing Company, an Oregon corporation, one of said defendants herein, and which said allowances were taken into consideration in said judgment heretofore specified hereinabove in this said decree and which more particularly appear in Finding of Fact No. X of those certain Findings of Fact and Conclusions of Law heretofore made, rendered and entered in this said suit by this court, which are specifically referred to hereby and by this reference made a part hereof."
The defendants Earl H. Fehl and Electa A. Fehl, his wife, alone appeal from this decree.
Based on the opinion in the case of Niedermeyer, Inc., v. Earl H. Fehl and others, hereinbefore referred to, that part of the decree in this suit above quoted, inasmuch as it attempts to adjudicate the defenses of the Fehls in the other suit, which were determined in their favor by the decision of this court in that case, is hereby set aside in so far as it is inconsistent with the opinion therein rendered. In all other respects the decree herein appealed from is affirmed; the defendants Fehl to recover their costs and disbursements in this court.
RAND, C.J., and BEAN and CAMPBELL, JJ., concur.