This suit arose out of the following facts: The defendant and one Neil Stewart were operating an automobile as a joint enterprise on the Pacific highway near Canby, Clackamas county, Oregon, at about 2 o'clock in the morning on October 11, 1933. They were both intoxicated. The plaintiff, a state police officer, placed them under arrest for driving an automobile on the highway while intoxicated. To prevent the car from being further operated by the defendants, the plaintiff stepped on the running board of said automobile. The defendant said to Stewart: "To hell with the officer, let's go." Stewart started up the car and drove rapidly in a zigzag course down the highway in an attempt to dislodge the officer from the car. Failing in this, the car was wilfully and wantonly driven close to a telephone pole for the purpose of crushing and dislodging plaintiff and plaintiff was crushed between it and the car. The plaintiff was injured very severely. He suffered body bruises, fractures of his eleventh rib, right and left; fractures of his second lumbar vertebra; a compression fracture anteriorally of the third vertebra; a compression of the fifth lumbar vertebra; and severe injuries about the chest and abdomen, the exact nature of which could not be definitely determined.
Plaintiff commenced an action at law against Smith and Stewart in the circuit court for Clackamas county on March 22, 1934, alleging the foregoing facts. After the accident, defendant returned to California where *Page 306 he has since remained, thus avoiding service of summons. Plaintiff, believing that defendant was the owner of the car, attempted to secure service of summons on defendant by the statutory method of serving the secretary of state. The car not being registered in the name of this defendant, upon motion of this defendant, who appeared specially for that purpose, such service of summons was quashed on March 7, 1936.
On March 23, 1934 — the day following the filing of the complaint in the law action in Clackamas county — plaintiff filed this suit in equity against defendant in the circuit court for Multnomah county to restrain defendant from transferring his real property in Multnomah county during the pendency of the action at law. The complaint in the law action, which alleged the facts heretofore set out, was attached to the complaint in the suit in equity, and, by reference, made a part thereof, and in respect to which plaintiff alleged that "every allegation contained in said complaint is true and plaintiff has a good cause of action against defendants named therein, and upon the cause of action therein alleged." Personal service of summons in the equity suit was made on Smith in California.
Defendant, appearing specially, made a motion to quash service, which was denied. Defendant then demurred to the complaint for the reasons: (1) The court had no jurisdiction over the defendant or the subject of the action; (2) that the complaint failed to state facts sufficient to constitute a cause of action.
On August 15, 1935, before the demurrer had been disposed of, the plaintiff, with permission of the court, filed his amended complaint, in which he realleged the facts constituting his cause of action as they appeared in the complaint filed in the action at law in Clackamas *Page 307 county. He alleged the filing of the law action in Clackamas county, the motion of defendant to quash services of summons therein and that said motion was still pending. He further alleged that plaintiff was a nonresident of this state and was the owner in fee of certain described real property in Multnomah county, Oregon; that unless restrained by the court, defendant threatened to and would dispose of said real property for the purpose of hindering and defrauding plaintiff from satisfying any judgment he might recover in the law action; that plaintiff had no plain, adequate or complete remedy at law.
Plaintiff prayed for a decree as follows: (1) That defendant be restrained from any transfer or disposal of the property during the pendency of the action at law or the suit in equity; (2) that the court determine the amount of damages due plaintiff unless the same be determined in the action at law; (3) that the amount of damages so determined be impressed as a lien upon the real property and that it be sold to satisfy said lien; (4) and such further relief as the court may deem equitable.
Defendant moved to strike the amended complaint on the ground that a new and distinct cause of action had been alleged. This motion was overruled and plaintiff demurred to the amended complaint on the grounds contained in the first demurrer, and for the further reason that there was another action pending between the same parties. In the interim, the circuit court for Clackamas county granted defendant's motion to quash service of summons in the law action, and said action was dismissed on March 7, 1936.
The court overruled the demurrer to the amended complaint, and defendant filed his answer in the form *Page 308 of a general denial, and for a further and separate answer plead the pendency of the action in Clackamas county.
Plaintiff filed a reply in which he set out the dismissal of the action in Clackamas county.
The cause was heard to the court without a jury, and a decree was entered awarding plaintiff damages in the sum of $7,500, impressing a lien for that amount upon the real property described in the amended complaint, and ordering said property to be sold to satisfy the amount found due plaintiff. Defendant appeals.
There can be no doubt that the circuit court for Multnomah county secured jurisdiction of the person of defendant by his voluntary general appearance therein and answer to the cause on its merits: Rogue River Mining Company v. Walker, 1 Or. 341;Sealy v. California Lumber Company, 19 Or. 94 (24 P. 197);Sweeney v. Jackson County, 93 Or. 96 (178 P. 365, 182 P. 380);Duncan Lumber Company v. Willapa Lumber Company, 93 Or. 386 (182 P. 172, 183 P. 476); Williams v. Seufert Brothers Company,96 Or. 163 (188 P. 165, 189 P. 636); State ex rel. v. Norton,131 Or. 383 (283 P. 12); Osburn v. Maata, 66 Or. 558 (135 P. 165); Herrick v. Wallace, 114 Or. 520 (236 P. 471); Andersonv. Guenther, 144 Or. 446 (22 P.2d 339, 25 P.2d 146);Woodburn Lodge v. Wilson, 148 Or. 150 (34 P.2d 611).
The principal contention of defendant is that equity has no jurisdiction in a case arising out of tort to impress a lien upon property within this state belonging to defendant, without plaintiff first reducing his claim to judgment.
This would seem to be the general rule, but there are exceptions. *Page 309
Mr. Pomeroy, in his work on Equity Jurisprudence, says:
"The distinguishing characteristics of legal remedies are their uniformity, their unchangeableness or fixedness, their lack of adaptation to circumstances, and the technical rules which govern their use. The legal remedies by action are, in fact, only two: recovery of possession of specific things, land or chattels, and the recovery of a sum of money. * * * Equitable remedies, on the other hand, are distinguished by their flexibility, their unlimited variety, their adaptability to circumstances, and the natural rules which govern their use. There is in fact no limit to their variety and application; the court of equity has the power of devising its remedy and shaping it so as to fit the changing circumstances of every case and the complete relations of all the parties." Pomeroy's Equity Jurisprudence, 4th Ed. § 109.
In § 111 of the same work, the author continues:
"Equity has followed the true principle of contriving its remedies so that they shall correspond both to the primary right of the injured party, and to the wrong by which that right has been violated. It has, therefore, never placed any limits to the remedies which it can grant, either with respect to their substance, their form, or their extent; but has always preserved the elements of flexibility and expansiveness, so that new ones may be invented, or old ones modified, in order to meet the requirements of every case, and to satisfy the needs of a progressive social condition, in which new primary rights and duties are constantly arising, and new kinds of wrongs are constantly committed."
Mr. Story in his work on Equity Jurisprudence (14th Ed.), § 63, uses the following language:
"Certain principles in equity are established, and dominate in the administration of justice in that field with as much certainty as do principles upon the law *Page 310 side, so to speak, of the court. But mere precedents are of no avail except to illustrate the extent which principles have been applied. The textwriters disagree, in some respects, in the manner of stating this, but are in harmony in this: While new principles are not to be added to those long established for the government of equitable remedies, the rules not the precedents are to control. There is no vitality in precedents; there is in rules. They are susceptible of expansion along every line necessary to reach new conditions. The ingenuity of man in devising new forms of wrong cannot outstrip such development."
In Overmire v. Haworth, 48 Minn. 372 (51 N.W. 121, 31 Am. St. Rep. 660), the plaintiff was a simple contract creditor, and the husband of defendant was a nonresident who owned property in Minnesota, the legal title to which was taken in the name of his wife, the defendant. Plaintiff sought to impress a trust upon the property to the extent of his claim. The claim had not yet been reduced to judgment and the court in passing judgment upon the question said:
"It must be regarded as the general rule, in this state at least, that the creditor must proceed to recover and enforce a judgment at law against his creditor before he will be allowed to maintain an action of an equitable nature to enforce the statutory trust. But the rule which forbids resort to equity for relief when there is an adequate legal remedy is not to be applied with such strictness as to practically deny to a party having a right against another, legal or equitable, any reasonably available means of enforcing it. It is true that an equitable suit will not be entertained if there is no necessity for resorting to such a proceeding.
"But, even though the law does offer a remedy which may be resorted to, still, if it be not adequate to the requirements of the case, equity should not refuse its aid within the proper scope of its jurisdiction. If the legal remedy be not reasonably available and effectual, *Page 311 there would seem to be no reason forbidding resort to equitable relief. For instance, a fraudulent debtor may abscond to some distant but known place, as to India, leaving no property within our jurisdiction which can be reached by attachment or ordinary legal proceedings, but leaving property which, by the aid of a court of equity, may be reached and appropriated to the satisfaction of his debts. We think that equity would not refuse to exercise its ordinary jurisdiction in favor of a creditor, under such circumstances, for the reason merely that he might secure a legal recovery and satisfaction in India, but at an expense far greater than the amount of his debt. In such a case, and in others which will readily occur to the mind, it is obvious that the ordinary course of legal proceedings affords in reality no adequate or real means of redress."
In Merchant's National Bank v. Paine et al., 13 R.I. 592, plaintiff brought a suit in equity, the bill alleging that defendant was indebted to plaintiff in the sum of $5,000, evidenced by a promissory note, and sought to obtain payment thereof out of certain equitable interests received under the will of his father and which he had conveyed to one of his co-defendants for the purpose of defeating the claims of the complainant. Plaintiff also alleged that defendant had absconded and could not be found in the state and had left no property which could be secured by attachment. The defendant demurred to the bill on the ground that the claim had not been reduced to judgment at law and that no execution had ever been sued out thereon. The court said:
"The question is whether a suit in equity can be maintained to enforce payment of a purely legal claim out of equitable assets before the claim has gone to judgment and execution at law. The counsel for the complainant admit that as a rule it cannot; but they contend that the only reason why it cannot is because *Page 312 a court of equity will not interpose until the creditor has exhausted his remedies at law, and because the best evidence that he has exhausted them is a judgment, when recoverable, with execution sued out thereon and returned unsatisfied for want of property. And they also contend that, when this evidence cannot be procured because the debtor is absent or has absconded, leaving no attachable estate, the court will proceed without it upon other satisfactory proof. They cite a Kentucky case in which this view is fully sustained by judicial decision. Scott v.McMillen, 1 Litt, 302. They also cite cases which contain favorable dicta, some of which appear to have been expressed after careful consideration. * * *
"Besides these cases, cited by counsel, we have found other cases which emphatically support the same view, cases, indeed, from which it appears that the jurisdiction contended for has been unequivocally affirmed in Kentucky, Virginia, Indiana, South Carolina, and Missouri. * * * Pendleton v. Perkins, 49 Mo. 565. In the last cited case the court, after reviewing the other cases, say, p. 568: `It seems thus to be satisfactorily settled upon authority that when the debtor has absconded, so that no personal judgment can be obtained against him, and there is no satisfactory proceeding by which his property can be reached, a creditor's bill will lie, in the first instance, and from the necessity of the case. It is analogous to a proceeding to subject the equities of a deceased debtor, or to satisfy a debt from a specific equitable fund, as to enforce a lien in neither of which cases is a personal judgment required.'
"If it were true that the only reason for the rule is the exhaustion of legal remedies, we should not hesitate at all to assert the jurisdiction, for very clearly where no legal remedy exists, none can be exhausted, and the reason for the rule would cease, and with the reason the rule itself. `Cessante rationelegis, cessat ipsa lex.' There is, however, another reason for the rule, namely, that a court of law is the proper tribunal not only to afford a remedy for legal claims, but also to *Page 313 adjudicate them. It seems to be well settled, however, that a creditor may proceed in equity without first geting judgment at law, if his debtor be dead. And if he can so proceed, if his debtor be dead, there can be no insuperable reason against his so proceeding while his debtor is alive. * * * If the claim be one that is peculiarly fit for legal, or peculiarly unfit for equitable cognizance, issues can be framed for jury trial. The jurisdiction ought to be, if it can be, upheld, since without it a debtor may have valuable property and yet escape the payment of his debts. Our conclusion is, so far as this point is concerned, that the suit can be maintained."
The doctrine that equity will subject a nonresident's property to the payment of a claim cognizable at law, without the claim first having been reduced to judgment, is supported by the following cases: Johnston v. Byars State Bank, 141 Okla. 277 (284 P. 862); First National Bank v. Eastman, 144 Cal. 487 (77 P. 1043, 103 Am. St. Rep. 95, 1 Ann.Cas. 626); Shuck v.Quackenbush, 75 Colo. 592 (227 P. 1041, 38 A.L.R. 259); Blundonv. Guy, 53 F.2d 930.
The above citation of authority is not exhaustive of the matter.
The preamble to the Constitution of the state of Oregon recites:
"We, the people of the state of Oregon, to the end that justice be established, order maintained, and liberty perpetuated, do ordain this constitution."
"To the end that justice be established, the people ordained our constitution": Mount v. Welsh et al., 118 Or. 568 (247 P. 815). Article 1, § 10, of the Constitution of Oregon, provides: "* * * and every man shall have remedy by due course of law for injury done him in his person, property, or reputation." Article 7, § 3 of the Constitution of Oregon provides: "In *Page 314 actions at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, * * *." (Italics ours.)
This constitution was adopted by the people of the state of Oregon September 18, 1857. The state was admitted to the Union and the constitution went into effect February 14, 1859. The first meeting of the legislative assembly under this constitution was held September 8, 1862. Some of the members of the constitutional convention were also members of this assembly. This legislative assembly proceeded to enact a code of laws in conformity with the spirit of the constitution. It adopted quite an elaborate set of rules governing the jurisdiction of the courts. It enacted into law, rules and regulations governing the jurisdiction and procedure for the enforcement of private rights and the redress of private wrongs in actions at law: § 1-101, et seq., Oregon Code 1930. This assembly further enacted:
"The enforcement or protection of a private right, or the prevention of or redress for an injury thereto, shall be obtained by a suit in equity in all cases where there is not a plain, adequate and complete remedy at law, and may be obtained thereby in all cases where courts of equity have been used to exercise concurrent jurisdiction with courts of law, unless otherwise specially provided in this title. * * *". § 6-101, Oregon Code 1930.
The same legislature and subsequent legislatures then enacted into law other provisions providing for the prosecution of many different kinds of suits in equity such as: General provision relating to suits in equity, §§ 6-101 to 6-115, Oregon Code 1930; issues, their trial, and the mode thereof, §§ 6-201 to 6-210, id.; mode of enforcing a decree, §§ 6-301 to 6-302, id.; injunction, *Page 315 §§ 6-401 to 6-406; foreclosure of liens upon real or personal property, §§ 6-501 to 6-513, id.; suits for the partition of real property, §§ 6-601 to 6-642, id.; suits by and against executors, administrators, legatees, heirs, or devisees, §§ 6-701 to 6-717, id.; suits by persons interested in trust for benefit of estate, §§ 6-801 to 6-817, id.; suits to declare void or dissolve the marriage contract, §§ 6-901 to 6-917, id.; suits to declare adverse claims to real property, and to cancel a patent wrongfully issued therefor, §§ 6-1001 to 6-1002, id.; and ascertaining and establishing boundaries, §§ 6-1101 to 6-1105. In every one of these subjects of litigation a trial by jury has been dispensed with.
The legislature then seemed to realize that it would be impossible to provide practical methods for the redress of every injury that might arise where there would be no "plain, adequate and complete remedy at law." It therefore placed in the court the power to provide a procedure that would meet such an exigency, by enacting the following section:
"When jurisdiction is, by the organic law of this state, or by this Code or any other statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by this Code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code." L. 1862; § 28-1715, Oregon Code 1930.
This court, speaking through Mr. Justice THAYER, in applying the above section in Aiken v. Aiken, 12 Or. 203 (6 P. 682), said:
"There need, therefore, be no failure of justice, under the jurisprudence of this State, in consequence of the mode of proceeding pointed out being inadequate to afford a remedy in a particular case, as any remedy *Page 316 in such case may be adopted, subject to the qualification mentioned. It is beyond the scope of legislative wisdom to prescribe a specific remedy for every class of cases that may arise in the complication of human affairs, and it was not attempted; but ample provision was made to prevent a party from being left remediless in case of an infringement upon his legal rights, and the court must of necessity recognize the provision and carry it out when a proper case is presented."
Section 10 of Article 1 of our constitution certainly means that a person who is injured in his person or property in this state shall have a remedy for such injury in this state, and that he shall not be required to follow the one who committed the injury to other states or countries in order to receive redress, when the wrong-doer has property within this state.
In the instant case, the defendant remained without the state of Oregon, preventing personal service of summons upon him, thereby depriving the court of the means of entering a personal judgment against him in an action at law. He owns property within the state which the plaintiff is powerless to reach through an action at law. The defendant came into the state, violated the state law by being intoxicated upon the public highways of the state. He again violated the state law when he resisted arrest. He again violated the state law when he wantonly and wilfully injured plaintiff, a state policeman, who was attempting to arrest him. Now he comes before this court asking us to protect him against the legitimate claim of plaintiff. When he thinks the law is in his favor, he cries out aloud for its enforcement, but at other times flagrantly disregards it, and injures one whose duty it is to enforce it. The plaintiff is a state policeman who attempted to protect the law-abiding citizens in their lawful use of *Page 317 the highways, and also to protect defendant from the probable consequences of his drunken condition. In order to effect the arrest of defendant and his companion who were operating an automobile while intoxicated, plaintiff stepped on the running board of the car. When he did this, defendant said: "To hell with the officer, let's go." Then the defendant's companion speeded up his automobile, zigzagged across the highway and when they failed in their purpose of throwing the officer from the car in that manner, they tried to, and did, crush him against a telephone pole, injuring him severely.
As above stated, the plaintiff is prevented from seeking redress in an action at law, so he came into a court of equity and asked the court to restrain defendant from transferring certain real property situate in Multnomah county, Oregon, until such time as the court could adjudicate what amount of damages will compensate him for his injuries which defendant "wantonly and wilfully" inflicted upon him. And surely the state of Oregon is strong enough and just enough to protect the rights of its citizens and to compel compensation from one who has trespassed upon those rights, at least to the extent of the property belonging to such a one, located within the state.
Much is heard nowadays of conferring the rule-making power upon the courts and of simplified procedure. Congress has conferred on the United States supreme court the rule-making power governing procedure in the federal courts. Here is an instance where the legislature of this state has already conferred that power upon the courts of this state, and we should not refuse to accept the responsibility of providing for that procedure. *Page 318
The constitution, as adopted in 1857, provided for the jurisdiction of the several courts, and § 9 of Original Article 7 gave to the circuit court:
"All judicial power, authority, and jurisdiction not vested by this constitution, or by laws consistent therewith, exclusively in some other court, shall belong to the circuit courts; * * *"
When Article 7 was amended in 1910, it was amended to read as follows:
"The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law." § 1, Article 7, Constitution of Oregon.
"The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law." § 2, Article 7, Constitution of Oregon.
The legislature has not seen fit to change Original Article 7, in respect to the jurisdiction of the circuit court, and this section has been retained as a statute of the state, so the circuit court is still a court of general jurisdiction.
Admitting for the sake of the argument that the plaintiff should follow the defendant and begin his action in the state where the defendant may be found (assuming that the courts of such state would entertain actions arising out of torts committed in another state), it would then be necessary in order to subject the property in suit to the satisfaction of that judgment to return to this state and commence a suit on that judgment and attach the property owned by defendant in this state. And when such judgment was established as a judgment in this state, the court could order the property sold for its satisfaction. But if defendant, in *Page 319 the meantime, has transferred this property to an innocent third party, plaintiff would be without redress. Or even should defendant transfer it fraudulently, it would be necessary for plaintiff to begin a suit to have such transfer set aside. Such procedure would be neither plain, adequate or complete. By the time plaintiff pursued his remedy on such a devious pathway, the amount he would recover would all be dissipated in court costs and counsel fees. The net result would be the same as the final outcome in Jarndyce v. Jarndyce, or the successful collection by Mark Twain on the beef contract with the United States government.
This court has frequently said that what you cannot do directly, you cannot do indirectly. The converse of that is, and should be equally true: What you can do indirectly, you can and should be able to do directly. And that is what plaintiff is doing in this suit.
In Williams v. Pacific Surety Company, 66 Or. 151 (127 P. 145), this court, speaking through Mr. Justice McBRIDE, said:
"Article 1, Section 10, of our Constitution provides that `every man shall have remedy by due course of law for injury done him in person, property or reputation,' and in pursuance of this provision (Section 983, L.O.L.) [§ 28-1715, Oregon Code 1930] provides that `when jurisdiction is, by the organic law of this state, or by this code, or by any other statute conferred upon a court or judicial officer all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of the proceeding be not specifically pointed out by this code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.' This wipes out common-law procedure, as such, with all its delays and technicalities, and leaves the court free to adopt such common-law procedure when in conformity with the spirit of the code, and to reject it when a procedure *Page 320 better calculated to facilitate the administration of justice presents itself."
In the instant case, the defendant has had actual notice and has voluntarily appeared in this suit. Before the court will issue an order to restrain the transfer of the property the plaintiff will be required to put up a good and sufficient bond to compensate defendant for any damages suffered if such injunction is wrongfully prosecuted: § 6-402, Oregon Code 1930. No possible injury could result to defendant by such a procedure.
This is suit in equity. The right of trial by jury in civil cases is only granted by the constitution in action at law where the amount involves over twenty dollars: Article 7, § 3, Constitution of Oregon. The constitution does not say that in every legal controversy between litigants that the right of trial by jury shall be preserved. The subject of the instant suit is an injunction. An equity court has always had jurisdiction over this subject and is specially granted such jurisdiction by the code of the state: § 6-401, et seq., Oregon Code 1930.
Mr. Taylor, in his work on "Due Process of Law", p. 279, quotes from Ex Parte Wall, 107 U.S. 265, 279 (27 L. Ed. 552,2 S. Ct. 569), in which the United States supreme court made the following observation in regard to due process of law:
"It is a mistaken idea that due process of law requires a plenary suit and a trial by jury, in all cases where property or personal rights are involved. The important right of personal liberty is generally determined by a single judge, on a writ ofhabeas corpus, using affidavits or depositions for proofs, where facts are to be established. Assessments for damages and benefits occasioned by public improvements are usually made by commissioners in a summary way. Conflicting claims of creditors, amounting to thousands of dollars, are often settled by the courts on affidavits or depositions *Page 321 alone. And courts of chancery, bankruptcy, probate and admiralty administer immense fields of jurisprudence without trial by jury. In all cases, that kind of procedure is due process of law, which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts."
A court of equity once obtaining jurisdiction of the subject matter and the persons may retain such jurisdiction and administer complete relief: Howe v. Taylor, 6 Or. 284; Shultzv. Shively, 72 Or. 450 (143 P. 1115); O-W.R. N. Co. v. Reed,87 Or. 398 (169 P. 342, 170 P. 300); Creason v. Muetzel,115 Or. 591 (239 P. 195); Crossen v. Campbell, 102 Or. 666 (202 P. 745); American Surety Company v. Hattrem, 138 Or. 358 (3 P.2d 1109, 6 P.2d 1087).
The contention that the amended complaint changed the cause of suit is untenable. The very same evidence that it would require to prove the original complaint would be necessary to establish the allegations of the amended complaint. Great liberality is permitted in the amendment of pleadings before trial, and the court did not abuse its discretion in allowing the amendment to be made changing the form and not the substance of the complaint. The amendment was made nine months before trial: § 1-906, Oregon Code 1930; Sangren v. Cain Lumber Company, 125 Or. 375 (264 P. 865); Zimmerle v. Childers, 67 Or. 465 (136 P. 349); York v.Nash, 42 Or. 321 (71 P. 59).
Defendant had his cause tried before a just and an impartial judge in a duly constituted court regularly organized in conformity with the constitution and laws of the state in which the cause arose. He was permitted to interpose his defense; he was represented by able counsel; he was permitted to cross-examine every witness who testified in favor of plaintiff; he was given *Page 322 compulsory process to procure any witness he desired to aid him in his defense; and he was permitted to offer any competent evidence that he wished to offer. He does not complain that the court did not reach a just conclusion on the evidence introduced. At least he has not brought a transcript of the evidence to this court so we must assume that the evidence fully justified the court's findings. Defendant's only contention is that the court did not follow the correct procedure in arriving at a just determination.
For the foregoing reasons, I cannot concur with the majority opinion, nor with those of the other dissenters, and the decree of the circuit court should be affirmed.