Volume 106 — Oregon Reports

<p>Bail — Sheriff Authorized to Tate Bail for Appearance of Prisoners in Mesne Process in Civil Actions.</p> <p>' 1. At common law, and under modern statutes, the sheriff has a right to take bail for the appearance of prisoners arrested in mesne proeess in civil actions.</p> <p>Bail — Judicial Officers With Power to Determine Cases have Power to Take Bail.</p> <p>2. Generally, all judicial officers having the power to hear and determine eases have the power, to take bail; such power being a necessary incident to the right to determine a cause.</p> <p>Bail — Discretionary With Court or Magistrate Empowered to Fix Amount.</p> <p>3. The amount of bail is addressed exclusively to the judicial discretion and sense of the court or magistrate empowered to fix the amount.</p> <p>Bail — Arrested Debtor Entitled to Bail Pending Appeal from Adverse Judgment in Habeas Corpus Proceeding.</p> <p>4. Debtor against whom judgment had been rendered under Section 8264, Or. L., and who had been arrested in execution of the body under Sections 218, 259, was entitled to hail under Constitution, Article I, Section 14, on appeal from an adverse judgment in habeas corpus proceedings, on the ground that his arrest was in violation of Section 19.</p> <p>Habeas Corpus — Appropriate Remedy in Aid of Bail.</p> <p>5. A writ of habeas corp'us is an appropriate and proper remedy in aid of bail. »</p> <p>ON THE MERITS.</p> <p>Arrest — Constitutional Law — Liability for Repayment of Winnings and Penalty not “Bebt” Within Constitution Relating to Imprisonment for Bebt — Defendant may be Arrested in Action to Recover Money Lost at Gaming.</p> <p>6. The liability to repay money won at gaming together with a penalty is not a “debt” within Constitution, Article I, Section 19, providing “there shall he no imprisonment for debt, * * ” and one against whom a judgment has been rendered for such cause under Section 8264, Or. L., for gaming as prohibited by Sections 2105-2110, 8263, Or. L., is subject to arrest and imprisonment under Sections 218 and 259, Or. L., providing the defendant in an action at law may be arrested in action for wrongful taking, detaining or converting of property, for fine or penalty, or when guilty of a fraud in incurring the obligation on which the action is brought.</p> <p>Gaming — Recovery of Losses Purely Statutory Right.</p> <p>7. The recovery of losses is a purely statutory right, and, in the absence of statute, the courts will not render their assistance to one whose cause is based on an illegal act.</p> <p>Gaming — Willingness of Gambler to Play Does not Preclude Recovery of Losses.</p> <p>8. That defendant, seeking recovery of his money and statutory penalty was a willing gambler seeking a profit is no defense.</p> <p>Torts — Consent Ordinarily Defense Except Where Crime Involved.</p> <p>9. Consent, while ordinarily a defense to an action based on tort, is never a defense, where the tort involves commission of a crime.</p> <p>6 Constitutionality of imprisonment for debt, see notes in 37 Am. St. Rep. 758; 34 L. R. A. 634; L. R. A. 1915B, 645.</p> <p>Civil liability for tort as debt within constitutional prohibition, see notes in 20 Ann. Gas. 1344; Ann. Cas. 1917D, 841.</p>

<p>Judgment — Default Judgment Against Nonresident a Nullity, Where No Substantial Compliance With Statutory Requirements of Notice.</p> <p>1. A judgment on default after service by publication against a nonresident defendant is a nullity where there has not been substantial compliance with the statutory requirements of notice to defendant.</p> <p>Attachment — Demand for Relief in Complaint Need not State Plaintiff’s Intention to Attach Defendant’s Property.</p> <p>2. The intention of plaintiff to attaeh property of defendant does not impose any statutory obligation to so state in the demand for relief made in the complaint required by Section 53, Or. L.</p> <p>Process — Published Summons, Stating Relief Demanded in Words of Complaint, Held Sufficient Under Statute.</p> <p>3. Where suit is brought against a nonresident and service had by publication as well as by personal service by summons in a foreign jurisdiction, the requirement of Section 56, Or. L., that the summons published “shall require a succinct statement of the relief demanded,” refers to the demand for relief set forth in the prayer of complaint, as required by Section 67; and where the summons contains a statement of the relief demanded in the very words of the recovery demanded in the complaint, it is in strict compliance with the statute.</p> <p>Constitutional Law — Sale Under Judgment Against Nonresident, on Published Summons Failing to Notify Defendant of Intention to Attach Property, Held Void Under Due Process Clause of Federal Constitution.</p> <p>4. Where suit was brought against a nonresident defendant, and service of summons was had by publication and also by personal service in another state, but the summons failed to notify defendant that property belonging to him had been attached and would be sold to satisfy the judgment a judgment of sale was invalid as in contravention of the due process clause of Constitution of the United States, Amendment 14.</p> <p>4. What service of process is sufficient to constitute due process of law, see notes in 50 L. R. A. 577; 59 L. R. A. 178; 35 L. R. A. (N. S.) 292; L„ R. A. 19170, 1143; 17 A. L. R. 884.</p> <p>Attachment — Summons Served by Publication Need not Notify Nonresident Defendant of Attachment of Property in Absence of Statute.</p> <p>5. In the absence of statute requiring notice of intention to attach property belonging to defendant, a summons, published or served personally in another state, need not notify the nonresident defendant that the property belonging to him has been attached, where the writ of attachment is executed in compliance with the statute by a seizure of the attached property or some equivalent act, such as provided by Section 300, Or. L., providing for filing and recording of the prescribed certificate by the sheriff.</p> <p>Attachment — Filing of Sheriff’s Certificate of Attachment Held to Confer Jurisdiction Over Attached Property.</p> <p>6. Under Section 300, Or. L., dispensing with the performance of acts equivalent to seizure of property on attachment, and providing for the filing and recording of the prescribed certificate made by the sheriff to afford notice to intended purchasers that real property affected thereby has been subjected to a lien for the payment of such a sum of money as may bo recovered in an action therefor, the court acquires jurisdiction and control over the property attached to the same extent as resulted under the former procedure.</p>

<p>From Wallowa: J. W. Knowles, Judge.</p> <p>In Banc.</p>

<p>Insurance — When Mortgagee Obtains Insurance, Inability Generally Enforceable Only by Him.</p> <p>1. Where a mortgagee effects insurance upon his interest in the mortgaged property, paying the premiums himself, the contract is between the mortgagee and the insurer, and, upon the happening of the event insured against, the liability of the insurer is a fixed one only as to the mortgagee, and, as a general rule, he alone can enforce such liability.</p> <p>Subrogation — Creature of Courts of Equity for Purpose of Doing Complete Justice.</p> <p>2. The doctrine of subrogation does not owe its origin to statute or custom, but is a creature of courts of equity having for its basis the doing of complete and perfect justice between the parties without regard to form.</p> <p>Subrogation — Applied According to Equity and Good Conscience.</p> <p>3. The doctrine of subrogation will be applied or not according to the dictates of equity and good conscience, or considerations of public policy, and will be allowed in all cases where the equities of the case demand it.</p> <p>Insurance — Insurer Ordinarily Subrogated Pro Tanto to Insured’s Rights Against Person Causing Loss.</p> <p>4. On payment of a loss an insurer, as a general rule, acquires the right to be subrogated pro tanio to any right of action which insured may have against any third person whose wrongful act or negleet caused the loss.</p> <p>Insurance — Insurer of Automobile upon Payment to Assignee of Conditional Sale Contract of Loss from Buyer’s Conversion not Subrogated to Rights of Assignee Against Seller as Guarantor of Contract.</p> <p>5. Where one selling automobile upon conditional contract assigned the contract to a bank and guaranteed payment and procured insurance, naming the buyer as assured, and also insuring against conversion, with the loss payable to the bank or the buyer, as their interests might appear, and the buyer thereafter converted the automobile, the insurer, upon payment of the loss to the bank, was not subrogated to rights of the bank against the seller on the guaranty, as it insured the automobile and not the debt, and it would be inequitable and unconscionable to hold the seller responsible for the conversion.</p> <p>Insurance — Payment by Insurer Held to Satisfy Guaranteed Debt so That It Could not be Assigned to the Insurer.</p> <p>6. Where one selling an automobile on conditional contract, assigning the contract to a bank, and guaranteeing payment, procured insurance against conversion payable to the bank, and the buyer afterwards converted the automobile, the insurer’s payment of the amount due on the policy to the bank satisfied the debt to that amount as against the guarantor, and it could not be assigned ■by the bank to the insurance company.</p> <p>Appeal and Error — Failure to Make Findings not Considered, When not Shown by Transcript or Abstract.</p> <p>7. Under Section 554, Or. L., requiring appellant to file transcript or abstract, and Section 556, providing for review only of questions of law appearing on tie transcript, and tie preface to tie rules of tie Supreme Court, appellant’s objection tlat tie court failed to make and file findings of fact, as required by Section 158, will not be considered, where neither tie transcript nor tie printed abstract of record slows such failure.</p> <p>3. Right of insurer, upon paying mortgage under mortgage clause in policy issued to owner of equity of redemption, to be subrogated to rights of mortgagee, see notes in Ann. Cas. 1917B, 1135; L. R. A. 1916A, 559.</p> <p>4. Right of insurance company to enforce subrogation in its own name, see notes in 1 Ann. Cas. 885; 18 Ann. Cas. 710; Ann. Cas. 1918A, 834.</p> <p>Appeal and Error — Assertion of Error in Brief Insufficient if It Does not Appear from Record or Bill of Exceptions.</p> <p>8. An error must be apparent on the face of tie reeord or be made to appear by bill of exceptions to lave it considered by tie appellate court, and it is not enough to assert in the brief tlat there is an error in the trial court’s judgment.</p> <p>Judgment — Presumptions in Favor of Regularity and Validity of Judgment of Court of General Jurisdiction.</p> <p>9. Where judgment is entered by court of general jurisdiction all presumptions are in favor of its regularity and validity.</p>

From Multnomali: George W. Stapleton, Judge. Department 2. This case comes here on appeal from an order refusing to vacate the appointment of a receiver for the Leona Mills Lumber Company, a corporation. On August 20, 1921, J. H. Cook, as plaintiff, sued the defendant corporation, with the sole object in view of having a receiver appointed for the protection of the company’s property.

<p>Homestead — Widow’s Right to Homestead Paramount to Deceased Husband’s Right to Dispose of It by Win.</p> <p>1. Under Sections 221-226, 1234, L. O. L., the right of the surviv- . ing widow, where there are no minor children, to the statutory homestead, is paramount to the right of the deceased husband to dispose of it by will, and any devise by which he attempts to convey it to other persons to take effeet after his death is void as against claim of the widow to have the property set aside to her.</p> <p>V/ills — Widow not Put to Election Where Win Gives Her Only Life Estate in Husband’s Property.</p> <p>2. Where, by the terms of a will, the widow is only given a life estate in all or part of the lands of her husband’s estate, she is not put to an election to take either under the will or her statutory right of homestead, but may take both.</p> <p>1. Right to make testamentary disposition of homestead, see notes in 21 Ann. Cas. 248; Ann. Cas. 1914B, 271.</p> <p>2. On devise or bequest of property in which testator had but a part interest as putting co-owner, who is a beneficiary, to his election, see notes in 92 Am. St. Rep. 695; 30 L. R. A. (N. S.) 644.</p> <p>Wills — Widow Qualifying as Executrix and. Bringing Suit to Construe Will not an Election to Take Under Will Only.</p> <p>3. Where there was nothing in the husband’s will, devising to his wife and after her death to his heirs all property which he died possessed of, indicating that he intended the devise to be in lieu of any rights which the wife might acquire under Section 1234, L. O. L., making provision for a homestead to be set off to her as her property, nor any language designed to put her to election, her qualifying as exeeutrix and in good faith bringing suit for the construction of the will under a mistaken belief that she was the only heir held not to amount to an election to take under the will.</p> <p>Wills — To Apply Doctrine of Election There must be Two Inconsistent Bights to Select from.</p> <p>4. To apply the doctrine of election there must be at least two inconsistent rights of interest to select from, and, where only one right exists and the other is a mere supposed right, there is no choice to be made and the doctrine does not apply.</p> <p>Homestead — Concealment of Fact of Former Action to Construe Will not a Fraud on Court in Homestead Proceeding.</p> <p>5. Where a husband devised all his property to his wife for life with remainder to others, and the wife, in honest belief that she was the sole heir, began an action in the Circuit Court for the construction of the will, whieh was decided adversely to her, that decree did not prevent her from petitioning the county court for an order setting aside a homestead, and in her failure to inform the County Court of the former proceeding there was no fraud.</p> <p>Executors and Administrators — Exemption can be Set Aside Without Citation to Devisees.</p> <p>6. Section 1234, L. O. L., does not require a citation to the heirs or a devisee under a will to give the County Court jurisdiction to sot aside exempt property, it being a part of the proceedings in the regular administration of the estate, and all parties are bound by it without personal notice.</p> <p>Homestead — Statute Does not Provide for Homestead Title in Fee to be Merged in Life Estate.</p> <p>7. An estate for life in real property may be merged in a fee-simple title to such real estate; but Section 1234, L. O. L., does not provide any mode for a homestead title in fee to be merged in or swallowed up by life estate.</p> <p>3. Qualification and acting as exeeutrix as affecting right of widow to election under will, see notes in 4 Ann. Cas. 1037; 6 Ann. Cas. 636.</p>

<p>Prom Multnomah: W. N. Gatens, Judge.</p> <p>In Banc.</p>