Opinion
Argued March 25, 1930
Affirmed June 17, 1930 Rehearing denied September 9, 1930
Appeal from Circuit Court, Multnomah County, ROBERT G. TUCKER, Judge.
Suit by Dow V. Walker against Howard Sutherland, as Alien Property Custodian for the United States of America, and others. From the decree rendered, plaintiff appeals.
AFFIRMED. REHEARING DENIED.
A.D. Leedy and G.E. Hamaker, both of Portland, for appellant.
John R. Latourette of Portland for respondents.
This is an appeal from a decree of the circuit court for Multnomah county sustaining a demurrer to the complaint. The above named defendant, Howard Sutherland, as Alien Property Custodian for the United States of America, recovered a judgment against Dow V. Walker, the above named plaintiff, August Wemme and Edward W. Wickey for the sum of $67,545.80. Said judgment was the result of a trial to a jury of an action charging said Walker, Wemme and Wickey with the conversion of 46 shares of the capital stock of the E. Henry Wemme Co., an Oregon corporation, and belonging to said Sutherland in his official capacity. An execution was issued on said judgment and was returned unsatisfied. Thereafter the proper proceedings were taken to cause an execution to issue against the body of said Wemme, and the above named defendants are charged with threatening similar execution to be issued against the above named Walker. To prevent such execution issuing and the arrest of said Walker thereunder, this suit was instituted to enjoin defendants from so proceeding in said action at law. Defendants demurred to the complaint on the ground that the court was without jurisdiction and that the complaint failed to state facts sufficient.
The main contention of the above named plaintiff in this suit is that the judgment rendered and entered in the case of Howard Sutherland, as Alien Property Custodian, against Wickey, Wemme and Walker was based on contract and not on tort. This court in a decision rendered this day has held to the contrary of plaintiff's contention.
The demurrer to the complaint admits the statements of fact therein, but does not admit the conclusions drawn by plaintiff. The facts set out in the instant case clearly show that the conduct of the above named plaintiff and his co-defendants in the action at law referred to was tortious. See Wemme v. Hurlburt, also decided this day. Plaintiff in the case at bar relies on the case of Re George Teeters, habeas corpus, 130 Or. 631 ( 280 P. 660). That case does not sustain the contention of plaintiff in the instant case. From the Teeters' case we take the following:
"The action was brought to enforce the obligation of Teeters to respond in damages for fraudulent representations alleged to have been made by Teeters to Lee which induced Lee to part with his money, and this is the obligation which Lee was seeking to enforce in the action and if the allegations of his complaint were true and had been established upon the trial, then the cause of arrest and the cause of action were identical and in such case the clerk would have had authority to issue the writ as a matter of course. The statute, however, provides that it is from the record of the cause and not from the complaint alone that it must appear that the cause of action is also the cause of arrest as prescribed in section 259. This record shows that the question of whether Teeters was guilty of fraud in inducing Lee to part with his money has never been adjudicated."
In the action of Howard Sutherland against Wickey and others, the issues were joined by the complaint and the answer of said Walker as to whether or not said Walker was guilty of fraud. That issue was determined in favor of said Sutherland and against said Walker. The question of fraud was determined judicially against plaintiff herein at the trial and the judgment following. The judgment has this day been affirmed in this court. The instant case is controlled by the case of Sutherland against Wickey et al., Wemme v. Hurlburt, and the reports should not be encumbered with another long opinion.
The injunction heretofore issued by this court is dissolved, and the decree of the circuit court is affirmed.
BROWN and ROSSMAN, JJ., concur.
For the reason stated in the case of Sutherland v. Wickey, this day decided, I withhold my assent to this opinion.