Opinion
Argued December 17, 1929
Judgment set aside April 15, 1930
Appeal from Circuit Court, Multnomah County, ORLANDO CORKINS, Judge.
Action by T.M. Hicks against the Hill Aeronautical School. Judgment for plaintiff, and defendant appeals.
JUDGMENT SET ASIDE AND RENDERED.
Joseph, Haney Veatch of Portland (James P. Powers of Portland on the brief) for appellant.
W.C. Winslow of Salem (Frank Hollister on the brief) for respondent.
This is an appeal by defendant Hill Aeronautical school from a judgment in favor of T.M. Hicks and against the defendant. The cause was tried to the court without a jury.
On or about the 20th day of November, 1927, the Aeronautical Pursuits Corporation, an Oregon corporation, sold to the defendant an airplane upon a written conditional sales contract. On or about the 25th day of November, 1927, the Aeronautical Pursuits Corporation assigned their right, title and interest in the contract to plaintiff. The contract provided that the defendant should keep said airplane insured against loss by fire, theft and collision, and that said contract further provided that said defendant should not remove same from the state of Oregon. Defendant failed, neglected and refused to provide insurance against fire, or theft and also took said airplane out of the state of Oregon, contrary to the provisions of said contract. Upon these grounds plaintiff brought action to recover possession of said plane.
The defendant denied the alleged breaches, and set up as a defense that plaintiff concurred in and expressly waived the condition against taking said plane out of the state of Oregon.
Upon trial, the issue upon the failure to keep said plane insured, was resolved against the defendant and a judgment entered against the defendant for the balance due on the contract, with interest, and the sum of $250 damages suffered by the plaintiff by reason of the depreciation sustained to the airplane and thereafter another judgment was entered, adjudging the plaintiff to be the owner and entitled to the immediate possession of said plane, and awarding plaintiff the possession of said plane, with a judgment for damages in the event that said possession could not be had, and cancelling and setting aside the prior judgment.
At the time the complaint was filed the respondent furnished the regular bond and affidavit and took possession of the plane. Thereafter and within the statutory time, defendant filed a redelivery bond and retook possession of the plane. Therefore, the plane remained in the possession of defendant pending this litigation.
Defendant assigns as error: (1) That the court erred in adjudging that plaintiff was entitled to recover possession of said airplane from defendant; (2) That the court erred in entering a judgment against the defendant for the balance due upon the conditional sales contract; (3) That the court erred in setting aside and vacating its first judgment and entering a judgment adjudging to plaintiff the right to the possession of said airplane.
Defendant contends that there was no sufficient proof of a demand by plaintiff for the possession of the personal property.
The testimony shows that Mr. Frank Hollister, one of the attorneys for plaintiff, called Mr. Victor, manager of defendant, over the 'phone and had his clerk, Myrtle Cradick, listen in on another 'phone so he would not have to testify. Miss Cradick testified that Mr. Hollister asked if he was "Mr. Strode of the Hill Aeronautical school and he said `Yes'". Hollister asked Strode to turn the plane over to them that morning. This was March 16, 1928. Strode refused to turn over the plane. Mr. Strode, at the time, did not question Mr. Hollister's authority but recognized it by his refusal.
Mr. Strode was a witness for defendant and did not deny the conversation. There is no room for mistake. The testimony of the demand is ample to prove the allegation of the demand.
The first judgment or "decree" was entered by mistake and was erroneous.
A judgment in an action to recover possession of personal property must be for the possession of property, or the value thereof, in case a delivery cannot be had, and damages for the retention thereof. Section 198, Or. L.
On account of Judge Corkins returning to his own district, after the case was tried, the corrected judgment, which was proper in form, was not entered until the term of court, at which the original judgment was entered, had expired. Or. L., § 3148.
A court has no power to vacate, set aside or amend a judgment after the expiration of the term at which it was rendered, except pursuant to proceedings begun within the proper time and continued to a subsequent term. Wade v. Wade, 92 Or. 642 ( 176 P. 192, 178 P. 799, 182 P. 136, 7 A.L.R. 1143); First Christian Church v. Robb, 69 Or. 283 ( 138 P. 856); Purdy v. Van Keuren, 62 Or. 34 ( 123 P. 1070); Stivers v. Byrkett, 56 Or. 565 ( 108 P. 1014, 109 P. 386); 34 C.J. 211, § 437.
We find an error in the record. The judgment is set aside. The testimony in the case is all contained in the bill of exceptions. We have read the same. From the evidence we are satisfied what judgment should be entered. It is useless to remand the case for a new trial.
The defendant had breached its conditional sales contract in important particulars. No insurance policy was obtained by defendant, as stipulated in the contract. Plaintiff's security was rendered unsafe. The plane had, at various times, been removed from the state of Oregon without plaintiff's consent. Section 3(c) of article 7 of the Constitution was ordained for just such cases. This provides in part as follows:
"Until otherwise provided by law, upon appeal of any case to the supreme court, either party may have attached to the bill of exceptions the whole testimony, the instructions of the court to the jury, and any other matter material to the decision of the appeal. If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; or if, in any respect, the judgment appealed from should be changed, and the supreme court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the supreme court."
A judgment will be entered in favor of plaintiff and against defendant; that plaintiff have and recover of defendant the possession of one Ox-5 Travel Air, Three-Place Biplane, No. 261, Motor No. 7289, described in plaintiff's complaint, or, in case delivery of possession thereof can not be had, then for judgment against defendant for the value thereof, $1,494, with interest thereon at 8 per cent per annum from February 20, 1928, until paid.
That plaintiff recover of and from defendant the further sum of $250 damages for the wrongful detention of said plane and for plaintiff's costs and disbursements herein.
COSHOW, C.J., and BELT, J., concur.