Helmick v. Davidson , 18 Or. 456 ( 1890 )

Per Curiam.

The circuit court should not have retained jurisdiction of the suit herein, after ascertaining that the respondent had agreed to dismiss it if the appellant Davidson would execute the chattel mortgage, and that the latter had complied with such agreement. The foreclosure of the Ladd & Bush mortgage, and sale of the real property mortgaged, cut off the respondent’s claim to equitable relief, and there was nothing left in the case to be determined except a money demand. The right on the part of the respondent to apply the proceeds of the sale of the wheat upon the debt was given by the chattel mortgage, and the application of the surplus arising upon the sale of the real property, under th e Ladd & Bush mortgage, was decreed in the suit to foreclose that mortgage. Hence, at the time the answer to the complaint in the suit herein was filed by the appellants, the only question which remained to be determined between the parties was, what amount, if any, was due to the respondent on' the note of January 21, 1880. The determination of that question depends mainly upon the fact as to whether the appellant Davidson paid upon said note the §335 and §350, as alleged in the answer. This is a matter in pais, and a very proper one to be submitted to a jury. A court of equity has an undoubted right, where it acquires jurisdiction for one purpose, to retain the suit for all purposes, and do complete justice between the parties in the cause. Such has long been its established policy. Its adoption, however, like that of other principles of equity, was to prevent a failure of justice. In this case the respondent agreed with Davidson, in consideration of an important advantage secured thereby, to dismiss the suit; but failed to keep faith with him, and procured the decree to be entered in his favor, which the circuit court set aside. In the meantime events occurred so affecting the subject matter of the suit that the respondent was unable to claim any relief therein, aside from that which he could obtain in a court . of law. Under such circumstances, jurisdiction in equity should not have been retained for the convenience of the respondent, especially where a trial by jury was much better adapted to a determination of the matter in dispute. The $350 item, the price of the team, depends for its allowance or disallowance as payment on the note almost entirely upon the fact whether the sale of the team was made subsequent or prior to the date of the note. The appellants have produced a large number of witnesses, persons of good standing in the community, who have testified that the team of horses remained in the possession and ostensible ownership of Davidson long after the time the note bears date; while the respondent has produced at. least as great a number of persons, of equally as good standing, who testified that he had possession and ostensible ownership of the horses long prior to that time. This testimony was taken by deposition, and is brought here for this court to determine which party is in the right; but it is so conflicting and equally balanced that an attempt to decide the merits of the question therefrom would be liable to do injustice to the party against whom the decision was made. The court, therefore, in view of all the circumstances of the case, has concluded that it will be more just to the parties to dismiss the complaint without prejudice, which will enable them to adjust their differences in a court of'law, if they should desire to do so.

The decree appealed from will therefore be reversed and the case remanded to the circuit court, with directions to dismiss the complaint without prejudice; neither party to recover costs.