Sutton v. Sutton

¶1'Argued October 19, modified Oetoter 22, 1915.

¶2On the Merits.

¶3(152 Pac. 271.)

¶4Department 2. Statement by Mr. Justice Harris.

¶5Bosa B. Sutton was divorced from her husband, James N. Sutton. The decree commanded the plaintiff to “déliver to the clerk of this court the photograph of James N. Sutton, Jr., deceased, the property of the defendant, in good condition, to be by said clerk delivered to the defendant.” The trial court also awarded alimony to plaintiff, “the first payment

¶6*13thereof to he made on or about the twentieth day of the month succeeding the delivery of said photograph as aforesaid, and the subsequent payments to be made on or about the twentieth day of each and every month thereafter until the further order of the court.” Each party appealed. The plaintiff complains because the court declined to allow more than $40 per month as alimony, and she also contends that error was committed in ordering a delivery of the photograph. The defendant insists that the plaintiff is not entitled to any sum as alimony; and he argues, too, that the court erred in not permitting the introduction of certain testimony.

¶7Modified.

¶8For appellant there was a brief with an orai argument by Mr. H. E. Collier.

¶9For respondent there was a brief and an oral argument by Mr. Frederick H. Drake.

¶10delivered the opinion of the court.

¶11The assignments of error embrace three subjects: (a) The exclusion of testimony; (b) the photograph; and (c) the amount of alimony.

¶123. After hearing the testimony of plaintiff and defendant and reading the deposition of a witness, for plaintiff, and upon being told that the defendant had four or five witnesses, the court said:

“I won’t hear that many. … I think I have heard enough of Mr. Sutton’s story, and you can put one more witness on corroborating him, if you have a witness of that character.”

¶13Counsel for defendant stated that he had not gone into the amount or nature of certain expenses which *14had been incurred, and that the defendant had alleged that he turned over to plaintiff all of the personal property worth about $1,300. The transcript of the proceedings records the court as then saying that:

“I know how it is in these domestic troubles; the parties want to go into all kinds of details, and the court generally has to take a pretty broad view of matters of this kind. We will not go into details. ”

¶14Counsel for defendant responded thus:

“We have two witnesses that won’t take over five minutes apiece.”

¶15And thereupon the court replied:

“Well, call them.”1

¶16The defendant did not request permission to take any testimony over the ruling of the court, and he did not offer to pay for the recording of such testimony. Although the court did afterward admit evidence concerning the expenses incurred, and while there is no indication of any injury, still it is not necessary to determine whether the defendant was harmed because he did not follow the course prescribed by Section 405, L. O. L.: Sutherlin v. Bloomer, 50 Or. 398 (93 Pac. 135); Durkheimer v. Gopperopolis Copper Co., 55 Or. 37 (104 Pac. 895); Ollschlager’s Estate v. Widmer, 55 Or. 145 (105 Pac. 717).

¶174. The trial was completed, and the court rendered an oral decision on February 10, 1915. A formal decree was signed and entered on February 19th, and afterward, on April 17th, the trial judge filed a certificate which recites:

“That prior to the making, settling and signing of the findings of fact and conclusions of law and the making, granting and signing of the decree herein the following statements and admissions were made *15to the court with reference to two large photographs of a deceased son of the parties to said suit as follows, to wit:

“That just prior to the close of the trial of said suit on the tenth day of February, 1915, Frederick H. Drake, attorney for defendant, stated to the court that plaintiff has in her possession two identical large photographs of the deceased son of the parties to this suit, one of which is the property of defendant, and asked that plaintiff by the decree be required to turn over to defendant one of said photographs.

“That thereupon H. E. Collier, attorney for plaintiff, admitted and stated to the court that plaintiff has in her possession the said two large photographs; that he would advise plaintiff to turn one of them over to the defendant; and that, therefore, he did not deem it necessary to insert the provision requested by attorney for defendant in the decree.

“That thereafter, to wit, on the nineteenth day of February, 1915, the matter of the settlement of the finding’s of fact and conclusions of law came on to be heard by the court, the plaintiff and defendant appearing by their attorneys, H. E. Collier and Frederick H. Drake, respectively, at which time attorney for plaintiff stated that plaintiff refuses and would not turn over to defendant either one of said photographs. ’ ’

¶18The ownership of the photograph is not made an issue by the pleadings, and it was not even mentioned in the evidence. Assuming that the attorney had a right to bind his client by admitting that defendant owned one of the photographs, it will be noted that he did not attempt to exercise the right because no such admission was made. He only admitted that the plaintiff had in her possession the two large photographs, and that he would advise her to turn one of them over to the defendant, and, furthermore, ample notice of the position taken by plaintiff was given to *16all parties concerned before the formal decision and decree were entered. While the decree has the merit of being fair and equitable, nevertheless the court was without authority to order the return of the photograph.

¶195. Pursuant to an agreement of the parties defendant stipulated to transfer his personal property and did convey his real estate to a trustee, who was empowered to sell the land according to his own judgment, and from the proceeds to pay a certain mortgage on the property, to satisfy certain indebtedness of James N. Sutton, and then to deliver the balance, if any, to the plaintiff. The defendant takes the position that the agreement made between the parties precludes the plaintiff from demanding alimony. The mortgage was foreclosed in August, 1914, so that the trustee was practically shorn of his power. The trustee had the right to sell according to his owfi judgment. The plaintiff did not derive any benefit from the transfer to the trustee, and therefore Eosa B. Sutton is not barred from claiming alimony.

¶20It will serve no useful purpose to relate or discuss the evidence appertaining to the financial condition of the parties; but it is sufficient to say that the ages of the parties, the salary received by the defendant, the loss of property once owned by James N. Sutton and the obligations which he is endeavoring to meet, and the attitude of the plaintiff, when considered together, convince us that the amount of alimony allowed was proper, and the conclusion reached by the trial judge was fair and just to both parties.

¶21The decree is modified so far as it relates to the photograph, but without prejudice to the right of defendant to avail himself of any appropriate remedy *17for the recovery of the photograph. In all other respects the decree is affirmed, without costs to either party in this court.

¶22Modified in Part.

¶23Affirmed in Part.