State v. Downing , 40 Or. 309 ( 1901 )

On Motion to Dismiss Appeal.

Mr. Chief Justice Wolverton

delivered the opinion.

On October 7, 1897, the relator, Thomas J. Hammer, obtained a judgment in the Circuit Court of the State of Oregon for Multnomah County against the appellant, F. O. Downing, and one F. H. Hopkins, as partners under the firm name of Downing, Hopkins & Company, for $7,817.50, with accruing interest and costs. On April 4, 1898, it appearing in a proceeding supplemental to execution that Downing had $10,000 in his possession and under his control liable to execution upon said judgment, which he unjustly refused to apply towards the payment of the same, the court made an order directing him to pay over a sufficient amount thereof to satisfy said judgment, from which order and judgment he appealed to this court, but proceedings for their enforcement were not thereby stayed. Subsequently, on June 30, 1898, a proceeding for contempt of court in refusing to comply with the said order of April 4, 1898, was instituted against him, wherein the court made findings, and entered thereupon the following order and judgment, viz.: “It is therefore ordered and adjudged by the court that the defendant, F. O. Downing, is guilty of contempt of this court, as charged in said affidavit of Thomas J. Hammer, the relator herein, and is now in contempt of this court for disobedience to its said order of the fourth day of April, A. D. 1898, and that it is in his power to comply therewith; and that said defendant, F. O. Downing, pay a fine of twenty-five dollars and costs of this proceeding, and be imprisoned in the county jail of Multnomah County, State of Oregon, until he shall have complied with said order of the fourth day of April, A. D. 1898, by applying a sufficient portion of said sum of ten thousand dollars upon said judgment in favor of said Thomas J. Hammer, mentioned in said order, to satisfy the same, namely, the sum of $7,817.50, with interest thereon from July 15, 1897, at the rate of eight per cent, per annum, and until said fine is paid. And on the motion of said defendant, F. O. Downing, it is further ordered that all further proceedings herein be stayed until the further order of the court, and that said defendant have sixty days to file a bill of exceptions. ’ ’ The defendant, Downing, having appealed from the judgment without attempting to have the proceedings stayed, the relator moves to dismiss the appeal for the reason that the order or judgment is not final, and therefore not appealable.

1. It is maintained by the relator that the latter clause of the judgment, which directs that all further proceedings be stayed until the further order of the court, retains the cause within the breast of the court below, so that it is empowered to modify or set aside and annul the judgment at any time upon further hearing, and, therefore, that the judgment is not final in its nature and purpose, so that an appeal' would lie therefrom. On the other hand, it is contended that the subjoined clause is effective only for the purpose of staying the issuance of a commitment and the enforcement of the judgment under and by virtue thereof; that it is rather in the nature of a stay of execution than a withholding of a final conclusion and adjudication upon the matters in controversy. The proceeding for contempt is one regulated entirely by statute, which provides — omitting a statement of the specific mode of procedure prescribed — that, upon the evidence taken as contemplated, the court or judicial officer shall determine whether or not the defendant is guilty of the contempt charged, and, if it be determined that he is guilty, he shall be sentenced to be punished as provided by such statute; and further, that, when the contempt consists in the omission or refusal to. perform an act in the power of the defendant to perform, he may be imprisoned until he shall have performed it, and in such case the act must be specified in the warrant of commitment. From the judgment thus given and entered either parly thereto may appeal “in like manner and with like effect as from the judgment in ah action”: Hill’s Ann. Laws, §§ 651, 659, 661, 664. Now, the judgment in the case at bar has determined that the defendant was guilty of contempt, and it specifies in what particular it consists. It is further adjudged that he pay a fine and the costs of the proceeding, and that he be imprisoned in the county jail until he shall have complied with the previous order of the court. This judgment conforms to every requirement of the statute, and without the latter clause no one would question that it was final in its nature and effect. The rule seems to be that, where it is the purpose of the court to pass upon all the questions at issue, and to finally consider •and determine concerning them, and make and enter a concluding order respecting them, without any intention of holding the matter in abeyance so that it may subsequently modify or revoke the order, the judgment so entered will be deemed to be final: Harvey’s Heirs v. Wait, 10 Or. 117. And this is just what the court in the present case undertook and intended to do. It was its purpose, undoubtedly, to dispose of the ease absolutely, so far as adjudging the defendant in contempt is concerned; and when it had entered the judgment in this regard that ended its jurisdiction to modify or vacate the same, unless for good cause shown within the statutory provisions. The purpose of the subjoined clause, about which the contention centers, was, no doubt, to stay the execution of the judgment only, and not to reserve judgment.

Decided 16 December, 1901.

2. The act establishing the proceeding contemplates that the judgment shall be enforced by means of a warrant of commitment, which stands in the stead of an execution upon the ordinary judgment. The defendant cannot be committed except by authority of a warrant. The judgment is not self-executing; hence the order staying further proceedings is one in effect staying the enforcement of the judgment by withholding the warrant of commitment. This view of the law supports the appellant’s right to appeal, and the motion to dismiss is therefore denied. Motion Overruled.