Niedermeyer, Inc. v. Fehl

Motion to recall mandate denied September 11, 1934 ON MOTION TO RECALL MANDATE (35 P.2d 477) On the appeal of this case the appellants did not file a supersedeas bond, and the respondent, plaintiff in the circuit court, after the perfection of the appeal proceeded to sell to a third party the real property covered by the mortgage which was foreclosed by the circuit court, for the sum of $5,372.43.

After the mandate in this proceeding was issued a motion was filed by the appellants to recall and modify it by allowing the appellants to recover from the respondent the sum realized from the sale of said real property. No showing is made as to whether the sale was made before or after the cause was disposed of by this court, and the record on appeal, other than the motion above mentioned, fails to disclose the fact of such sale. There was, therefore, nothing before this court at the time the mandate was issued to warrant the inclusion in the mandate of any order requiring a restitution to the appellants by the respondent of the fund so received, or for a judgment for that amount.

The circuit court, however, has jurisdiction to correct the error committed by it in entering its decree in favor of the plaintiff, and to restore to the appellants all "that they have been compelled to lose under the erroneous decree". When, by proper showing, it is made to appear to the circuit court that the plaintiff proceeded, while the appeal was yet pending, to sell the mortgaged property, that court should, upon receipt of the mandate reversing the decree appealed from, exercise its inherent power and direct complete recovery by the appellants of the entire amount received from the sale of such property, by entry of judgment therefor: Coker Bellamy v. Richey, 108 Or. 479 (217 P. 638); together with interest thereon at the legal rate from the date of receipt thereof by the respondent.

The motion of the appellants to recall and modify the mandate is hereby denied, and the motion of the respondent to strike said motion from the files of this court is likewise denied.

RAND, C.J., and BEAN and CAMPBELL, JJ., concur.