on motion to dismiss appeal
How later courts described this case
- on motion to dismiss appeal
Written by the judges who cited it.
The opinion
ON REHEARING
Helm & Neely, La Grande, and Brown & Yan Yaetor, The Dalles, for the petition.
George T. Cochran, La Grande, and Gene B. Conklin, Pendleton, contra.
On Respondents’ Petition for Rehearing
ROSSMAN, J.
The petition for a rehearing argues that the pooling agreement averred in the complaint, and which received analysis in our previous opinion, does not constitute the sole basis for recovery which the plaintiffs submitted. They argue that an alternative theory of recovery is contained in their complaint and that it can be found in the paragraph of that pleading which we quoted in our opinion. According to them, that paragraph submits as an additional basis for recovery the theory of a resulting trust; and they further contend that the purported resulting trust has its source in money contributed by Mr. Pierce toward the purchase price of the Home Ranch. A brief submitted by the plaintiffs in support of their petition for a rehearing endeavors to show that all, or at least much, of the initial payment upon the Home Ranch was defrayed with money belonging to Mr. Pierce. Although we are satisfied that our original opinion correctly states the *147 source of the money -which discharged the first installment of the purchase price of the Home Ranch, we are not averse to assuming for a moment that some of Mr. Pierce’s money was used for that purpose.
In advancing its contention, the petition for a rehearing argues:
“This Court has adopted the rule that a contributor to the purchase price is entitled to an interest in the property in the proportion that Ms contributions bear towards the purchase price, as opposed to the aliquot part rule.”
It will be recalled that when the deed was prepared and delivered it named Mrs. Pierce alone as grantee. Likewise, all leases were signed by her alone as lessor.
Mr. Justice Robert S. Bean, on behalf of the court, said in Hayes v. Horton, 46 Or 597 , 81 P 386 :
“* * * It is a general rule of law that where the purchase price of land is paid by one person, and the title taken in the name of another, the grantee will hold it in trust for the person furnishing the money, even without a declaration to that effect: 2 Story, Eq. (13 ed.), § 1201. But tMs rule does not apply to a purchase by a husband in the name of Ms wife, or by a parent in the name of a child. In such case the presumption is that the purchase money was intended as an advancement or gift, until the contrary is established by the evidence: 2 Story, Eq. (13 ed.), §1203; Welton v. Divine, 20 Barb. 9 ; Guthrie v. Gardner, 19 Wend. 414 . If, therefore, it be assumed, although not clearly shown by the evidence, that the purchase of the property and the improvements thereon were made with the defendant’s money, there can be no resulting trust in his favor on account thereof, because there is no evidence to overcome the presumption that it was intended as a gift to her. * * *”
*148 In accord with the decision just reviewed, see Coe v. Coe, 75 Or 145 , 145 P 674 , in which it is said:
“* * * No agreement was entered into by Dr. Coe and Mrs. Coe when the real property was purchased and the deed secured whereby she stipulated to hold the legal title in trust for him or for any purpose. This being so, an error was comndtted in the part of the decree disposing of the home.”
Our two decisions of which we have just taken note represent the general rule. Scott on Trusts, 2d Ed, § 442, and 89 CJS, Trusts, § 127.
In our original opinion we reviewed the evidence which shows that if any of Mr. Pierce’s money constituted a part of the initial payment upon the purchase price of the Home Ranch, the record affords no basis for any belief except that he intended it as a gift to his wife. It. will be recalled that at that time Mr. Pierce was heavily indebted to his wife, and that he had many times expressed himself as most grateful to her. We are aware of no evidence which indicates that if he contributed anything to the first payment, he did not intend it as a gift to her.
The above does not mention all of the propositions and arguments presented in the comprehensive brief which accompanies the petition for a rehearing, but all have been carefully considered.
The petition for a rehearing is denied.
Perry, C. J., and McAllister, J., dissent.
Helm & Neely, La Grande, and Brown & Van Vactor, The Dalles, for the motion.
George T. Cochran, La Grande, and Gene B. Conklin, Pendleton, contra.
On Respondents’ Motion to Dismiss Appeal
ROSSMAN, J.
This canse is again before ns, this time npon a motion to dismiss the appeal. Our opinion was rendered February 13, 1957. Thirty days later the respondents-cross-appellants filed this motion to dismiss. It gives the following as the grounds upon which it is based:
“Plaintiffs represent to the Court that the decree from which appeal was taken herein (Appel *150 lant’s Abstract 31), a copy of which is hereto affixed, marked Exhibit ‘A’ and by this reference made a part hereof, is and was an interlocutory decree and was not appealable, and that no account or accounting has been taken as provided for therein and no further orders or decrees entered.”
Our decision described fully the challenged decree and mentioned the fact that it ordered the defendant to account; it said:
“The decree did not specify the amount of the money with which it charged the defendant, but ordered an accounting so that the amount would be ascertained.”
The decree which was challenged by the appeal was entered by the circuit court August 21,1956; notice of appeal was filed September 7, 1956; and notice of cross-appeal October 11, 1956. Thereupon the appeal was perfected, the transcript was filed, the briefs were delivered to this court and then the oral arguments were made. Our decision, as we said, was rendered February 13, 1957. Not until thirty days later was the motion to dismiss filed. Evidently the motion challenges the entire appeal, both the one resulting from the appellants’ notice of appeal and also the one coming from the respondents-eross-appellants’ notice.
OES 19.010 says:
“For the purpose of being reviewed on appeal the following shall be deemed a judgment or decree:
iV,
(a) An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein.
35*
(c) A final order affecting a substantial right, and made in a proceeding after judgment or decree.”
*151 The contention submitted by the motion to dismiss is that the decree was not final within the terms of the legislation just quoted. Should jurisdiction actually be lacking, the appeal should be dismissed even though an opinion has already been handed down on the merits. Shely v. Votaw (Ky), 272 SW2d 462 ; MacNeill v. Maddox, 194 Gra 802, 22 SE2d 653 . Such a motion was denied, however, in Alamo Motor Lines v. International Brotherhood (Tex Civ App), 229 SW2d 112 , the court saying:
“As a general rule a cause appealed to this court will not be dismissed after a decision has been rendered and an opinion handed down.”
In their efforts to sustain the motion to dismiss, the respondents-eross-appellants depend much upon McEwen v. McEwen, 203 Or 460 , 280 P2d 402 . The opening paragraph of that opinion described in the words which we will now quote the nature of the proceedings which culminated in the entry of the interlocutory decree:
“This is a proceeding for a declaratory judgment to determine the existence and extent of an alleged partnership, for a dissolution of the partnership and an accounting, and for other equitable relief, brought by * *
No motion was made by the respondent to dismiss the appeal, as is indicated by the decision itself in saying: “No motion was filed in this court to dismiss this appeal.” It is true that the ownership of a 320-acre tract of land of undisclosed value and whereabouts was involved in the proceeding, but concerning it the decision said:
<<# * * The decree is considered as a whole, and the incidental relief respecting the 320-acre *152 tract of land does not make the decree a final decree from which an appeal may be taken.”
That was, therefore, an instance in which relief concerning the tract of land was incidental. The accounting was the chief objective.
Lyon v. Mazeris, 170 Or 222 , 132 P2d 982 , which received no mention in the McEwen decision, was written by Chief Justice Bailey, who bestowed upon the problem now before us his usual meticulous care in matters pertaining to legislation. The decision stated the nature of the controversy in these words:
“The plaintiff, John L. Lyon, instituted this suit against Gene Mazeris, Underbit Sheep Corporation, Emigrant Creek Land Company, a corporation, and others as defendants, for the purpose of having the plaintiff declared owner of certain personal property, consisting of sheep, other livestock and camp equipment, described in the complaint, and two tracts of land in Harney county comprising 1,680 acres, and for an accounting by the defendants.
# *
“The main object of the instant suit was to have the plaintiff declared the owner of the real and personal property in litigation. The decree appealed from was a final determination as to such ownership. And upon the court’s adjudging that the plaintiff was the owner an accounting by the defendants followed as an incident to that determination. Inasmuch as the rights of the parties in the property were adjudicated, nothing further remained to be done by the court to carry the decree into effect so far as concerned the ownership and possession of the real and personal property.”
The decision, after showing that the statute governing appeals had its genesis in the civil code of 1862, cited the amendments which were subsequently made by the *153 legislature in order “to enlarge the right of appeal.” After he had cited the decisions which were announced prior to the enactment of the liberalizing amendments, and all of which had been adverse to efforts to appeal from decrees containing anything in the nature of interlocutory provisions, Mr. Justice Bailey declared:
“In making the amendments of 1907 and 1915 the legislature undoubtedly took cognizance of the above decisions of this court and intended to enlarge the right of appeal. It did not attempt to prevent an appeal in those instances in which the court had held that the right of appeal existed, as, for example, in circumstances such as shown in Marquam v. Ross, supra.
“The decree appealed from in the case at bar, although denominated interlocutory, was in effect final and not interlocutory, because determinative of the principal issue involved. The substance of the order, and not the name given it, establishes its nature. In accord with the reasoning and ruling in Marquam v. Ross, supra, it is our opinion that the principal issue between the litigants herein was determined by the order under consideration, and that such order was therefore final, consequently appealable.
“Were this not the case, the defendants would be deprived of the title and possession of the real and personal property involved, long before the entry of the decree on the accounting, and would be denied the right to have the res remain in statu quo until a final determination of the controversy could be had in this court. An appeal after the entry of a decree on the accounting might be unavailing because not effectual to stay the enforcement of that part of the decree affecting the ownership and possession of the property. The decree appealed from in the instant case, as that in Marquam v. Ross, supra, was susceptible of immediate enforcement, whereas in Froman v. Jones, supra, Winters v. Grimes, supra, and Muellhaupt v. Strow *154 bridge Estate Co., supra, the decree attempted to be appealed from lacked finality.”
We deem it unnecessary to review again our previous holdings. They take the position that if the decree fixes the rights and liabilities of the parties upon the subject of the controversy and refers the matter for accounting purposes only, the decree is deemed final for the purposes of appeal. McEwen v. McEwen, supra, was not intended to make any change in the trend of authority.
The decree challenged by this appeal settled fully all of the equities between the parties, and had it been affirmed nothing would have remained to be done except to conduct the accounting.
The motion to dismiss the appeal is denied.