Livesley v. Krebs Hop Co.

Decided October 20, 1908.

On Petition for Restraining Order Pending Appeal.

197 Pac. 718.]

Restraining Order Issued.

Messrs. Teal & Minor and Mr. William M. Kaiser for the petition.

Mr. John A. Carson and Mr. Thomas Brown, contra.

Mr. Justice Eakin

delivered the opinion of the court.

1. The first question to be decided is whether the Supreme Court in such a case has jurisdiction to issue a temporary restraining order. The jurisdiction of the Supreme Court is defined by the Constitution of Oregon, Article VII, Section 6, viz.:

“The Supreme Court shall have jurisdiction only to revise the final decisions of the circuit courts.”

And it can have no jurisdiction beyond what is granted by the constitution. Therefore it has no original jurisdiction, and cannot issue any writ in an original proceeding, but, as incident to its appellate jurisdiction, it has such inherent powers as are necessary to enable it effectually to exercise such jurisdiction. Elliott, App. Proc. § 20 says:

“It is not to be understood that an express statutory provision is required to confer upon an appellate tribunal authority to exercise an auxiliary authority in aid of its appellate power, although such auxiliary authority may be in its nature original, for all courts of the rank of appellate courts proper have such general powers as are necessary to enable them to effectually exercise the jurisdiction conferred upon them.”

The grant of appellate jurisdiction, whether made by the constitution or by statute, necessarily vests in such court all powers of an incidental nature required to make the granted jurisdiction effective. Ib. § 22. At section 512 the same author says that appellate tribunals are invested with power to issue injunctions when necessary to enable them fully and effectually to exercise appellate jurisdiction; and this authority is recognized in many of the states under constitutional limitations similar to those of this State. The Wisconsin Constitution (Article VII, Section 3) provides: “The Supreme Court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only” — and, further, that it shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same. In Cooper v. City, 34 Wis. 181, in discussing the power of the Supreme Court to issue a writ of injunction, the court holds that the third clause of that section of the constitution, relating to the issue of writs, has reference only to the exercise of original jurisdiction, namely, to suits commenced in that court, and say that, as incident to the full and proper exercise of appellate jurisdiction in cases brought up by writ of error or appeal, the power to grant the writ or order the stay of proceedings in these cases exists without an express grant. To the same effect is People v. Cook Circuit Court, 169 Ill. 201 (48 N. E. 717) ; Kent v. Mahaffy, 2 Ohio St. 498; Yeoman v. Lasley, 86 Ohio St. 416; Wagner v. Railway Co., 38 Ohio St. 32; Leech v. State, 78 Ind. 570; Jones v. City of Little Rock, 25 Ark. 284; Doughty v. Railroad Co., 7 N. J. Eq. 630 (51 Am. Dec. 267). Mandamus in aid of appellate jurisdiction is recognized by this court in Che Gong v. Stearns, 16 Or. 219 (17 Pac. 871). See, also, Works, Courts & Juris, pp. 98, 171. Therefore we conclude that the appellate court has power, as incidental to its jurisdiction, to issue a restraining order when necessary to aid or protect its appellate jurisdiction.

2. And in a case in the appellate court, in which a provisional injunction is proper, Section 420, B. & C. Comp., is equally as applicable as in cases in the circuit court. In such cases the writ should be allowed only upon filing the undertaking provided for in Section 419, B. & C. Comp. Elliott, App. Proc. § 513, says:

“The statute makes no provision as to the procedure in obtaining a restraining order or injunction on appeal, but the practice is substantially that prescribed for the trial court.”

Mr. Justice JOHNSON in Wagner v. Railway Co., 38 Ohio St. 40, a case similar to this, speaking of the writ, quotes Section 5572 of the Ohio Code, which contains similar provisions to Section 420, B. & C. Comp., and says: “This would authorize a temporary order pending the litigation, and is an exercise of the appellate power, which follows the case into whatever court it may be appealed, or taken on error, as part of the appellate jurisdiction conferred by law.”

The question then arises: Is this a proper case for the issuance of such a writ? It cannot be allowed simply for the protection of plaintiffs from damage or hardship. That is the province of a court of original jurisdiction. It is said in Doughty v. Railroad Co., 7 N. J. Eq. 629, 636 (51 Am. Dec. 267), that the issuance of such a writ in aid of appellate jurisdiction “is manifestly a very high and delicate exercise of power — one which should by no means be exercised as a matter of course, but only upon the most imminent necessity.” This court has jurisdiction to issue this writ only in aid of or to protect its appellate jurisdiction, and for no other purpose. But the threatened enforcement by execution of the judgment, which is the subject of this suit, would operate to satisfy the judgment, and thus nullify any decree this court might render relating thereto, or at least render such a decree difficult of enforcement. As said in Chegary v. Scofield, 5 N. J. Eq. 525, 531: “We can do nothing but review the particular order or decree appealed from, except that, * * where the Chancellor, by his decree, has loosened a man’s hands, we may, by a preliminary order, tie them up again, until we can hear the appeal and determine whether he ought to be let loose or not.”

Therefore we are of the opinion that this is a proper case for issuance of the writ to preserve the subject of litigation pending the hearing on the merits; and a restraining order will be allowed, as prayed for in the application, upon plaintiffs filing an undertaking in this court, as provided by Section 418, B. & C. Comp., in the sum of $500. Petition Allowed.

Statement by Mr. Justice King.

This is a suit by T. A. Livesley and John J. Roberts, co-partners as T. A. Livesley & Co., against the Krebs Hop Company, a corporation, for an accounting, and to enjoin the issuance of execution and collection of a judgment, for the sum of $4,000, in a certain action, wherein this defendant was plaintiff and these plaintiffs were defendants. The facts leading up to the controversy are as follows: On August 25, 1904, the parties hereto entered into a contract in writing, wherein Livesley & Co., the plaintiffs, agreed to purchase, and the Krebs Hop Company, defendant, agreed to sell, a certain quantity of hops therein specified. Under this contract (see 51 Or. 527, 528: 92 Pac. 1084) the Krebs Hop Company agreed to sell and deliver to these plaintiffs, f. o. b. cars Independence, Or., or f. o. b. boat Murphy’s Landing, not later than the 15th day of October, during each of the years 1905, 1906, 1907, and 1908, 100,000 pounds of hops, the hops to be the product of, and grown on, the Krebs Hop Company’s Buena Vista farm, sometimes known as the Henderson W. Murphy farm, situated in Polk County. The contract price of the hops was 14 cents per pound, to be paid $2,000 between the 1st and 15th day of April of each year, $2,000 between the 1st and 15th day of May of each year, $6,000 between the 1st and 5th day of September of each year, and $4,000 on delivery and acceptance of the hops by the buyer. No controversy respecting compliance with the contract occurred during the year 1905, but on November 4th of that year the Krebs Hop Company executed a warranty deed, purporting to convey to Ladd & Bush the entire farm upon which the hops were to be grown. The deed was recorded 11 days later, at which time an instrument in writing was executed, assigning to Ladd & Bush all payments to accrue to it under the hop contract. Subsequently Ladd & Bush gave notice to Livesley & Co. that all moneys accruing under the contract must be paid to them, and not to their assignor. After some correspondence Livesley & Co. notified Ladd & Bush and the Krebs Hop Company in writing, to the effect that they would retire from and refuse to be bound by the contract. The Krebs Hop Company, without offering to deliver any hops, on May 19, 1906, brought an action against the plaintiffs on the contract, not for damages, but to recover and secure, and did secure, judgment in the sum of $4,000 for the April and May installments. Livesley & Co. then appealed to this court, resulting in an affirmance of the judgment, and on April 30, 1908, a mandate from this court, affirming the judgment in the court below, was entered. At the time of the commencement of this suit defendant was threatening to issue an execution against plaintiff on this judgment; hence this proceeding.