# Fischer v. Bayer > Oregon Supreme Court · November 14, 1922 · 108 Or. 311 URL: https://www.frixlaw.com/law-library/cases/6907940 ## Case - **Full name:** FISCHER v. BAYER - **Court:** Oregon Supreme Court - **Decided:** November 14, 1922 - **Citations:** 108 Or. 311; 210 P. 452; 1922 Ore. LEXIS 179 - **Precedential status:** Published - **Opinion:** Dissent by Burnett - **Judges:** Brown, Burnett, Harris, McBride, McCourt, Rand - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6907940 ## Opinion text BURNETT, J., Dissenting. In his complaint, the plaintiff charged the defendants upon an alleged joint liability for labor, money and goods furnished to *331 them. Each defendant answered separately, denying the allegations of the complaint, and as a result of a jury trial a verdict was returned in favor of the plaintiff and against all the defendants. On this verdict a judgment was rendered to the effect that the plaintiff have and recover from the defendants “jointly and severally” a certain sum of money. On appeal it was held in substance that there was no testimony showing any liability of J. C. Bayer, trustee, or of Eastern Irrigation, Power and Lumber Company, but that there was evidence enough to take the case to the jury as against the defendant Keep. The opinion concluded with the statement that “the judgment therefore will be reversed and the cause remanded to the Circuit Court with directions to enter judgment against the defendant Keep on the verdict, and a judgment of nonsuit as to the other two defendants.” A mandate was issued to the effect that the judgment of the Circuit Court be in all things reversed and set aside as to the defendants Bayer, trustee, and the company, but affirmed as to the defendant Joseph R. Keep, and likewise that the plaintiff recover not only from Keep but also from his surety on appeal the amount of the judgment against him with costs. Contending that the surety on appeal was not liable, the defendant Keep moved to recall the mandate and to correct the judgment of the court so as to render him alone liable, and not his surety on appeal. This motion was allowed, the mandate recalled, and a new one issued directing the Circuit Court to enter a judgment against Keep alone, exonerating the surety on appeal and to enter nonsuit as to the other defendants. The plaintiff in *332 Ms turn filed a motion to recall the second mandate and to correct it so as to direct a judgment, not only against Keep but also against tbe surety who signed the undertaMng on behalf of all the defendants. The opinion of Mr. Justice McCotikt sustains that contention and directs judgment to be rendered against Keep and against the surety. Without evidence to sustain such a conclusion the jury found a joint verdict against all the defendants. This justified only a joint judgment and not a joint and several judgment. The defendants all joined in the appeal “from all and each and every part of said judgment.” The undertaMng on appeal was signed by all of the defendants and the surety and was conditioned that “defendants and appellants herein will pay the damages, costs and disbursements which may be awarded against the said defendants and appellants on said appeal, and if said judgment appealed from as aforesaid, or any part thereof,, be affirmed on said appeal, that the said defendants and appellants will satisfy said judgment in so far as it shall be affirmed.” It must be remembered that the liability charged was a joint liability. Except as affected by the statute, the plaintiff, having alleged a joint liability, must prove it and could recover only on a joint judgment. It is provided thus in Sections 180 and 181, Or. L.: Section 180. “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves. *333 Section 181. “In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, whenever a several judgment is proper, leaving the action to proceed against the others.” These statutes modify the former rule that, having alleged a joint liability, the plaintiff must fail unless he proves the same. The verdict rendered was for a joint liability. On this determination of the jury the plaintiff had no right to anything but a joint judgment. The verdict did not disclose a joint and several liability. The defendants appealed from a judgment showing such liability. The surety agreed that if such a judgment should be affirmed, the appellants would satisfy it. It did not stipulate to underwrite a joint or several liability, but one which was at once both joint and several. In order to hold the surety liable on appeal, the plaintiff was bound to obtain a judgment in this court showing a joint and several liability, for thus was it nominated in the bond. Strictly speaking, the judgment ought merely to have been reversed with an order to enter nonsuit as to Bayer and the defendant company and for further proceedings as to Keep, without anything further in this court. This is all that could have been done before the adoption of Section 3 of Article YII of the amended Constitution of this state. That section provides in substance, that having before it a transcript of all the testimony given in the Circuit Court, the instruction of the court to the jury and any other matter material to the decision of the appeal, this court, if it shall be of the opinion that it can determine what judgment should have been rendered *334 in the court below, 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. If the Circuit Court had done its duty according to the record before us, it would, at the trial, have directed a nonsuit as to the defendant Bayer and Eastern Irrigation, Power and Lumber Company and have submitted the case to the jury as to the defendant Keep. The utmost that could have resulted would have been a several judgment against Keep alone and that is what all agree is the judgment that ought to have been entered. It is only in pursuance of the power vested by the amended Constitution in this court that we can in law actions enter a particular judgment different from that promulgated by the Circuit Court. The original decision in this court was to reverse in toto the judgment of the Circuit Court. Besides that, acting under the constitutional sanction, we rendered a new judgment as upon a trial de novo. It was not an affirmance of the judgment of the Circuit Court in any sense of the word. It was a new and independent judgment emanating from this court. It undertook to give to the plaintiff precisely what he was entitled to under the record before us on appeal, which was a judgment against the defendant Keep alone, unsecured by any collateral undertaking. The plaintiff is not entitled in this court to a better judgment than he recovered in the Circuit Court. The fallacy of the majority opinion lies in holding the judgment we have rendered against Keep to be an affirmance pro tcmto of the Circuit Court judgment. That judgment was destroyed by an express *335 reversal. If the judgment had been reversed for further proceedings in the Circuit Court as to Keep, as the old practice would have directed, the resulting several judgment that might have been rendered against him would not have been counted as an affirmance of the joint and several judgment appealed from. The original opinion accomplished precisely that result under the Constitution, not on account of, but in spite of, the Circuit Court judgment. If the judgment is to be considered an affirmance of the judgment of the Circuit Court, it is without any foundation in the verdict because it was a joint verdict against all the defendants. Nothing was said by the jury about any several liability. It is axiomatic that the judgment of the trial court must follow the verdict. The only foundation for the present judgment against Keep is in the original authority of this court vested by the Constitution and based upon its examination of the testimony independent of the conclusion of the jury. The surety did not undertake to pay the original judgment rendered in this court. It only undertook to pay the one rendered in the Circuit Court in which the defendants were held jointly and severally liable. It may have been willing to underwrite a judgment for which all were liable, but not one for which Keep alone was liable. The majority opinion impairs the obligation of the contract embodied in the undertaking and imposes a liability upon the surety which was not contemplated by its agreement. The decision opens the door for the surety company, when it shall pay the individual debt of Keep embodied in the judgment, to call upon Bayer and the Lumber Company for contribution, *336 thus working out in effect a joint liability upon all the defendants, which we have all agreed ivas not to be found in the record before us. For these reasons, I dissent from the opinion of Mr. Justice McCourt. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6907940. Public record. Not legal advice.