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such circumstances that, if one had brought cinct. The court, however, assumed to know an action against the other, a counterclalia judicially that such is the case, and so incould have been set up, the two demands structed the jury. shall be deemed compensated so far as they This, we think, was error. "Courts will equal each other.

Code Civ. Proc. generally take notice," said Greenleaf, "of § 4-10.

whatever ought to be generally known withPlaintiff at the oral argument stipulated in the limits of their jurisdiction." 1 Greenin open court that, if this court should be leaf Ev. (14th Ed.) $ 6. They will, therefore, of the opinion that the evidence should have know judicially. whatever is established by been allowed we might order such a modifi- law (B. & C. Comp. $ 720), and as a consecation of the judgment as should give the quence the location of counties, towns, predefendant the full benefit of the matter ill- acts, or other local subdivisions, so far as leged and attempted to be proved. The they may be disclosed by public statute (16 amount alleged by defendant to have been by

Cyc. 859; 17 Am. & Eng. Ency. [20 Ed.] 911), him advanced to plaintiff is $390. The court but not where such local subdivisions have charged defendant with interest at varying been created and their boundaries established rates to February 19, 1902, and from that

by some court, board, or commission. Thus date to entry of judgment at 7 per cent.

a court will not judicially notice a county With the aid of counsel we have calculated

created by county commissioners under a the interest on $390 from January 1, 1901,

general law (Buckinghouse et al. v. Gregg 19 to February 1, 1902, at 374 per cent., the

Ind. 401), or a township formed by a board highest rate charged against defendant up to

of county commissioners (Bragg et al. v. the latter date, and find that the principal

Board of Commissioners of Rush County et and interest then amounted to $405.85, which,

al., 34 Ind. 405), or a town incorporated unat 7 per cent. up to the date of the entry of

der a general law (City of Hopkins v. Kansas the judgment, would make the principal and

City, St. Joseph & Council Bluffs R. R. Co., interest amount to $455.91.

79 Mo. 98), or that an incorporated town is The judgment is therefore modified, by within a certain township, the boundaries of deducting therefrom the sum of $155.91 as

which were established by the county court of the date of the entry thereof, and, as

(Backenstoe v. Wabash, St. Louis & Pacific so modified, it is affirmed; and the order

Ry. Co., 86 Mo. 492). Horeb precinct is a denying the motion for a new trial is like

subdivision of a county, set off and establish'wise affirmed.

ed by the county court. B. & C. Comp. $

2762. Its boundaries are subject to change by We concur: COOPER, P. J.; KERRI

that tribunal biennially, and the court canGAN, J.

not take judicial notice of such boundaries at any given time, or that a particular town

is within such precinct. These are matters STATE v. CARMODY.

of fact, and, when material, should be (Supreme Court of Oregon. Aug. 20, 1907.)

proved.

Judgment reversed, and new trial ordered. CRIMINAL LAW-JUDICIAL NOTICE.

A precinct being a subdivision of a county, set off and established by the county court under B. & C. Comp. $ 2762, with power in that tribunal to biennially change its boundaries,

(49 Or. 577) courts cannot take judicial notice that a certain DAVIDSON v. COLUMBIA TIMBER CO. precinct is in a certain town.

(Supreme Court of Oregon. Aug. 20, 1907.) (Ed. Note.--For_cases in point, see Cent. Dig. vol. 14, Criminal Law, $ 705.)

1. APPEAL-FILING TRANSCRIPT-TIME - Ex

TENSION-STIPULATION. Appeal from Circuit Court, Marion County : The time fixed by law for the filing of the Geo. H. Burnett, Judge.

transcript on appeal cannot be extended by

stipulation of the parties without an order of Henry Carmody appeals from a conviction.

court based on such stipulation, filed before the Reversed, and new trial ordered.

time fixed by law has expired. W. H. Holmes, for appellant. John H. JIC

[Ed. Note. For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, $ 27+1.) Nary, Dist. Atty., for the State.

2. SAME-ORDER NUNC PRO TUNC.

Where no order was granted by the trial BEAN, C. J. The defendant was tried and judge on a stipulation extending the time for convicted of selling intoxicating liquor to the filing of a transcript on appeal until after one Joe Heenan in Horeb precinct, in Marion

the time fixed by law had expired, the court had

no power thereafter to grant an order extending county, in violation of an order of the county

such time to th: date fixed in the stipulation by court prohibiting the sale of such liquor in directing that the same be entered nunc pro such precinct, made in pursuance of the

tunc as of the date of the stipulation.

[Ed. Note.-For cases in point, see Cen:. Dig. provision of the local option law adopted by

vol. 3, Appeal and Error, $ 2741.] the people June 6, 1901. The proof tended to show that defendant sold intoxicating liq- Appeal from Circuit Court, Colunabia Counuor to the person named in the information ty; Thomas A. McBride, Judge. in the town of Gates, Marion county; but Action by E. L. Davidson against the Colthere is no proof that Gates is in Horeb pre- unbia Timber Company. From a judgment

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for plaintiff, defendant appeals. On motion which to file a transcript must be secured to dismiss. Granted.

before the time has expired. Tallmadge v. J. F. Boothe, for appellant. T. J. Cleeton,

Hooper, 37 Or. 503, 61 Pac, 319, 1127. for respondent.

It follows that we have no alternative but

to allow the motion; and it is so ordered, PER CURIAM. On November 3. 1906, plaintiff recovered judgment against defend

(50) Or. 88) ant in the circuit court of Columbia county

KRAUSE Y. OREGON STEEL (O. for $2,400 and costs. Defendant appealed, by giving notice in open court at the time the

(Supreme Court of Oregon. Aug. 20, 1907.) judgment was rendered. The transcript was

APPEAL JUDGMENT OF SUPREME (OU'RT-ENnot filed in this court until April 15, 1907.

TRY_JURISDICTION OF TRIAL (OURT.

Where, after findings and decree by the The parties stipulated in writing for an or

trial court, the suit was appealed and tried der extending the time until that date, but anew in the Supreme Court on the law and the no order of the court was made in accordance facts, and the Supreme Court rendered its own with such stipulation. The defendant moves

decree, which on mandate was entered in the

circuit court for enforcement, the original deto dismiss the appeal.

cree of the circuit court became functus officio, The filing of transcript within the time and the decree of the Supreme Court was final, allowed by law, or an extension thereof which

and not subject to modification or change by the

circuit court. may be granted by the trial court or judge thereof, or by this court or a justice thereof,

Appeal from Circuit Court, ('larkamas

, within the time allowed to file such tran

County; Thomas A. McBride, Judge. script, is jurisdictional, and cannot be dis- Action by August Krause against the Orepensed with by consent of the parties; nor gon Steel Company. From an order denying can the court permit the transcript to be

an application to recall an execution and filed after expiration of the time, whatever

correct the decree, defendant appeals. Afreasons may have occasioned the neglect.

firmed. Kelley v. Pike, 17 Or. 330), 20 Pac. 685; MC- S. B. Lintbicum, for appellant. C. M. Carty v. Wintler, 17 Or. 391, 21 Pac. 195; Idleman, for respondent. Nestucca Road Co. v. Landingham, 24 Or. 439, 33 Pac. 933; Connor v. Clark, 30 Or. 382, EAKIN, J. This cause was tried in the 48 Pac. 364.

lower court in June, 1901, and appeal taken The defendant produced at the hearing and from the decree therein, and on August 8, asked permission to file a certified copy of an 1.904, decree was rendered in this court order of the trial court, made on July 20, (Krause v. Oregon Steel Co., 45 Or. 378, 77 1907, as follows: "It appearing to the court Pac. 833) which, upon mandate, was entered that on the 20th day of March, 1907, a stipu- in the lower court. Afterward, on May 12, lation was signed by the plaintiff and defend- 1905, the defendant, by motion and affidavits, ant's attorneys extending the time in which applied to the lower court to have an executo file a transcript on appeal in the Supreme tion theretofore issued on said decree reCourt until April 15, 1907, and it further called, and for an order interpreting and modiappearing that no order was entered by the fying, or correcting, said decree in accordance court at that time upon said stipulation, it is with equity and the intention of that court. now ordered that the time in which to file The lower court denied the motion, for tile the transcript in said cause in the Supreme reason that it was without jurisdiction to enCourt be and the same is hereby extended tertain it, from which this appeal is taken. until April 15, 1907, and it is further ordered Counsel for the defendant insists that the that this order be entered on the journal of lower court bad jurisdiction to hear and dethis court as on March 20, 1907.” This rec- termine the motion, as it only called for a ord does not show that an order enlarging the correction of the decree of that court. The time was in fact made "within the time al- vice of tbis position is: ('ounsel ilssumes lowed to file the transcript." It recites the that, as the decree below was affirmed in stipulation of the parties, and that no order this court, it rests now upon the original dewas entered by the court in accordance there- (ree entered by the lower court; but it is not with, and then continues, "It is now (July now the decree of the lower court, except 20, 1907) ordered that the time he extended," for juurposes of enforcement. The casos etc., clearly indicating a previous date, but cited by counsel for defendant in support of which the clerk had failed to enter of rec- ! its motion only discuss the power of the ord, it should be entered as of the date when court over its judgments after the adjournmade. If an order extending the time in , ment of the term at which they were renWhili to file the transcript had actually been dered, viz., (orrections of clerical errors and made, but not entered of record, it would have | nunc pro tune entries to make the judgment been proper for the court to have directed an conform to that pronounced by the court; entry nunc pro tune is of the proper date; but they can bare no application in such a but it had no authority to wake such an or- case as this, and are not authority is to der after the time for filing the transcript | the power of the circuit court to modify a had expired, and direct it to be entered as of decree of the Supreme Court, which, upon a previous date. An extension of time in mandate, is entered there.

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In Welch v. Keene, 21 Pac. 25, 8 Mont. fore the statute of limitations commenced to 305, cited by defendant, the appeal was dis- run from the time of the taking over the propmissed, which left the original decree ren- erty of the defendant bank. In the opinion dered in the court below the decree in the we have treated this transfer as a valid one case unaffected by the appeal, and is there- between the defendant bank and defendant fore not in point. Elliott, App. Procedure, s company, and only constructively fraudulent 576, says: "No modification of the judgment as to plaintiffs, because it deprived defendor decree directed by the appellate tribunal ant bank of the means with which to pay can be made by the trial court. No provi- its debts, and the remedy of the plaintiffs is sion can be ingrafted upon it, nor can any not in the right of defendant bank, but in be taken from it." And in section 579, in

their own right, by reason of the equitable speaking of affirmance of judgments at law, lien existing in favor of the creditors of the he says: "This confirmation operates to corporation bank. This is fully discussed in a limited extent as a merger, inasmuch as the opinion. it concludes the trial court and the parties,

Counsel cite authorities in the motion to and absolutely precludes them from modify

the effect that, where plaintiffs' remedy is ing or abrogating the judgment affirmed.

primary and direct, the creditor need not The authority of the trial court as to all

procure judgment and return of exécution matters involved in the appeal and adju

before suing the transferee, but may bring dicated by the judgment there rendered is at

suit in the first instance against it. an end."

these are cases in which the primary liaIn the case at bar, after findings and de

bility is created by statute, and are there. cree by the lower court, the suit was ap

fore not in point. We believe that Case v. pealed, and the cause tried anew here upon

Beauregard, 101 U. S. 688, 691, 23 L. Ed. 1004, the law. and facts. This court rendered its

states the rule correctly, viz.: “Whenever a own decree thereon, which, upon mandate

creditor has a trust in his favor, or a lien of this court, was entered in the lower court for enforcement, and the original decree ren

upon property for the debt due him, he may dered by the circuit court thereby became

go into equity without exhausting legal processes or remedies. *

* * functus officio; and the decree of this court is

Indeed, in those final, and not within the power of the low

cases in which it has been held that obtain

ing a judgment and issuing an execution is er court to change or modify. Therefore the lower court was without ju

necessary before a court of equity can be risdiction to entertain the motion, and the

asked to set aside fraudulent dispositions of order denying it is affirmed.

a debtor's property, the reason given is that a general creditor has no lien; and, when

such bills have been sustained without a (49 Or. 492)

judgment at law, it has been to enable the

creditor to obtain a lien, either by judgment WILLIAMS et al. (LEONARD, Intervener), v.

or execution. But when the bill asserts a COMMERCIAL NAT. BANK OF PORTLAND et al.

lien, or a trust, and shows that it can be

made available only by the aid of a chancel(Supreme Court of Oregon. Aug. 20, 1907.)

lor, it obviously makes a case for his interLIMITATION OF ACTIONS-ACCRUAL OF CAUSE

ference." But in the case at bar, although OF ACTION-CREDITORS' Suit. Where a corporation made a transfer to de

the creditor has an equitable lien, it is not fendant, valid as between them and only con- specific, and he has no reniedy upon it if the structively fraudulent as to plaintiffs, creditors debtor has property subject to execution, and, of the corporation, because it deprived it of

as said in Case v. Beauregard, supra: "In means to pay its debts, plaintiffs' remedy against defendant, which is equitable, is not primary ;

some cases, also, such an averment (of judgbut judgment against the corporation and execu- ment and execution returned) is necessary to tion thereon returned nulla bona are prerequi

show that the creditor has a lien upon the sites to its suit against defendant, so that limitations against the suit commence to run, not

property he seeks to subject to the payment from the time of the transfer, or even from the of his demand." And that is the case here. time of plaintiffs' discovery of the property, but This equitable lien is not available to the only from the return of the execution nulla

creditor until he has disclosed that the debtor bona. [Ed. Vote.--For cases in point, see Cent. Dig.

is insolvent; and, further, one of the first vol. 33, Limitation of Actions, $ 336.]

requisites in maintaining a creditors' bill is

that the creditor has established his claim or On motior. for rehearing. Denied. For former report, see 90 Pac. 1012.

debt hy judgment at law. 12 Cyc. 9. This

court has frequently beld that the debt canEAKIN, J. By the motion for a rehear- not be litigated in equity, but before the (reding defendant insists that, as plaintiffs are itor can maintain such suit he must reduce not seeking to be subrogated to the right of his claim to judgment at law. Fleischner v. defendant bank, but are proceeding upon a Bank of McMinnville, 36 Or. 573, 51 Pac. 881, liability in their own favor, they need not CO Pac. 603, 61 Pac. 343. This was not a debt reduce their claims to judgments against the for which the defendant company was pridefendant bank, but may bring suit against marily liable, nor may the plaintiff's look pri the defendant company directly, and there. marily to this lien. This right is upon a

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liability dependent upon whether the defend- prepared by Seymour D. Thompson, author ant bank is without property available to of Thompson on Corporations, we think plaintiffs.

states the law correctly as gathered from the Upon the statement of facts in this com- cases. In Clapp v. Peterson, 101 Ill. 26, 31, plaint, plaintiffs had no standing without the the corporation had bought in its own stock, allegation of judgment and execution re- giving in exchange therefor certain city lots, turned nulla bona against defendant bank. and the creditor, after the judgment obtained D. A. Tompkins Co. v. Catawba Mills (C. C.) and execution returned nulla bona, brought 82 Fed. 780. We understand that the case of suit against the former stockholder to follow Taylor v. Bowker, 111 U S. 110, 4 Sup. Ct. the property so convered by the corporation. 397, 28 L. Ed. 368, is directly in point upon The court say: "We see nothing to show that this question. In that case, prior to 1807, the the transaction in the present case was not insurance company had wrongfully, as to in good faith, that there was any element of creditors, made a division of a portion of its fraud about it, or that there was anything property among stockholders, and afterward in the apparent condition of the company to surrendered its charter. Bowker obtained interfere with the making of the exchange judgment on April 4, 1868, against the in- that was had. It is only as injuriously afsurance company upon a suit commenced fecting the interests of creditors, we think, prior to the surrender of the charter. Ex- that the transaction can be questioned, and ecution was returned nulla bona July 8, 1868, it is in that view that it must be considered and on April 11, 1874, being more than six and passed upon. In Sanger v. l'pton, 91 years after the judgment, but less than six U. S. 60, 23 L. Ed. 220, it is laid down: "The years from the return of execution, Bowker capital stock of an incorporated company is a commenced this suit to reach property in the fund set apart for the payment of its debts. bands of the defendants, received by them It is a substitute for the personal liability prior to the surrender of the insurance com- which subsists in private copartnerships. pany's charter; and it was held that judg- When debts are incurred, a contract arises ment and execution were essential to Bow- with the creditors that it shall not be withker's remedy against defendants to reach drawn or applied, otherwise than upon their equitable assets, regardless of the statute, demands, until such demands are satisfied. which dispensed with a return of the execu- The creditors have a lien upon it in equity. tion. Although the question was not raised If diverted, they may follow it as far as it in Bartlett v. Drew, 57 N. Y. 587, cited in can be traced, and subject it to the payment the opinion, it is held that, before there is a of their claims.'” Therefore we conclude remedy to follow the equitable lien of a cred- that although the plaintiffs are not suing in itor upon the assets of a corporation, the the right of the defendant bank, but in their legal remedy must be exhausted. In Christen- own right to follow the property of a corposen V. Quintard, 36 Hun. (N. Y.) 331, the ration under this equitable lien, yet they canbridge company distributed to its stockhold- not pursue that remedy until the claims have ers, including Quintard, a large amount of

been reduced to judgment and the insolvency mortgage bonds without consideration. Plain- of the defendant bank is disclosed; and the tiff recovered judgment for his debt against statute of limitations will run not from the the defendant company, and had execution

time of the discovery by the plaintiffs of the returned nulla bona, and he brought this suit

transfer of the property, but from the time against defendant to recover the value of said that they are in a position to institute the bonds received by him. Defendant insisted

suit, viz., from the date of the return of the on the statute of limitations, claiming that, if

execution nulla bona. the debtor was barred, defendant also was

Motion for rehearing is denied barred. The court holds that plaintiff's right does not depend upon the right of the bridge

(49 Or. 605) company to recover from the defendant, but

STATE . LUPER. upon his own right to enforce the creditor's equitable lien upon the assets of the cor

(Supreme Court of Oregon. Aug. 20, 1907.)

1. CRIMINAL LAW-CONTINUANCE. poration, and that his remedly does not arise,

In a trial for perjury in swearing to the or the statute begin to run, until judgment complaint upon which defendant procured a diand return of execution, citing Bartlett v. vorce, there was no abuse of discretion in deny Drew, supra, Scovill v. Thayer, 103 U. S.

ing a continuance until the wife's application to

open the decree could be disposed of; the mani143, 26 L. Ed. 968, and Taylor v. Bowker, 111

fest purpose being to obtain delay until by the U. S. 110, + Sup. Ct. 397, 28 L. Ed. 368. opening of the decree the marriage relation The foundation of the proceeding by a

should be restored, thus disqualifying her to

testify against him. creditor to follow the property of an insol

[Ed. Note.-For cases in point, see Cent. Dig. vent corporation in the hands of a third party vol. 14, Criminal Law, $ 1311.] is not identical with such a proceeding to

2. WITNESSES — HUSBAND AND WIFE - COMreach property of an insolvent individual MUNICATIONS. fraudulently conveyed. The authorities clear- B. & C. Comp. 8 724, providing that neither ļ maintain a distinction. The quotation in husband nor wife may be examined, during the

marriage or afterwards, as to any communica. the opinion from 10 Cyc. 1205, which was tion made by the one to the other, is inapplica.

ble in a criminal trial; and, in a trial for per- Mrs. Luper restored, thus disqualifying her jury in swearing to a complaint upon which

from testifying against him in the criminal defendant obtained a divorce for the wife's alleged desertion of him, he could testify concern

action without his consent. Certainly such ing statements made to him during the marriage a state of facts did not entitle him to a conrespecting her intent to desert him.

tinuance as a matter of right. Whether the Appeal from Circuit Court, Marion County ;

ends of justice would have been subserved Geo. H. Burnett, Judge.

thereby was a question for the trial court, T. J. Luper was convicted of perjury, and

and with its conclusion we must decline to he appeals. Reversed and new trial ordered.

interfere.

While the defendant was on the stand, tesIn July, 1906, the defendant commenced a

tifying in his own behalf, his counsel offered suit for divorce against his wife, Lizzie R.

to interrogate him concerning statements Luper, in department No. 2 of the circuit

made to him by his wife during the marriage court for Marion county, alleging that she

regarding her intention to desert him; but deserted him in 1904 without cause or proy

the court, on the objection of the state, reocation and against his will and consent,

fused to allow him to do so, for the reason and had continued her desertion ever since.

that evidence of any communications between Service of summons was had upon her by

defendant and his former wife, during their publication, and, as she did not appear with

marriage, was incompetent. Section 724 of in the time required, her default was regu

the Civil Code provides that a husband and larly entered, and after trial a decree of di

wife cannot be examined, during the marvorce was rendered as prayed for in the com

riage or afterwards, as to any communicaplaint. A short time thereafter Mrs. Luper

tions made by the one to the other. Whether learned of the decree, and immediately came

this section includes all communications beto Oregon and caused the arrest of defend

tween husband and wife, or only such as are ant for perjury in swearing to the complaint,

confidential, it is not necessary now to conand at the same time she made an applica

sider, because it does not apply to criminal tion to open the decree, on the ground that

prosecutions. State v. McGrath, 35 Or. 109,

v, she had a meritorious defense to the suit and

57 Pac. 321. The Criminal Code is complete had never received a copy of the complaint

within itself as to the competency of the busor summons. Pending her application to

band or wife to testify in criminal prosecuopen the decree, the district attorney filed an

tion against the other, and contains no proinformation in department No. 1 of the cir

vision governing the proof of communications cuit court for Marion county against defend

made by the one to the other. It simply proant, charging him with perjury in verifying

vides that when a husband is the party acthe complaint in the divorce suit. When the

cused the wife shall be a competent witness, application to open the decree came on for

and when the wife is the party accused the hearing in department No. 2, defendant, by husband shall be a competent witness; but his attorneys, appeared and consented to the

neither shall be compelled or allowed to tesallowance of such motion; but the district

tify, unless by the consent of both, except in attorney interposed, and on his suggestion

cases of personal violence (B. & C. Comp. $ the court declined to make the order, but took

1401), leaving the question of the competency the matter under advisement. The defendant

of their testimony either during or after the thereupon moved for a postponement of the

marriage to be determined by the common criminal case until his wife's application to

law. It is a rule of law, founded upon pubopen the decree in the divorce suit could be

lic policy, the object of which is to secure disposed of; but this motion was denied, and

domestic happiness and tranquility, that "all the defendant tried and convicted. From a

confidential communications between husjudgment sentencing him to the penitentiary,

band and wife, and whatever comes to the he appeals, assigning, among other errors, the

knowledge of either by reason of the hallowoverruling of his motion for a continuance

ed confidence which that relation inspires, and refusal of the trial court to permit him

cannot be afterwards divulged in testimony" to testify as to statements made to him by

(Greenl. Ev. $ 337), even after the marriage his wife regarding her intention to desert

is dissolved by death or divorce. him.

But the. rule which renders incompetent W. H. Holmes and Carey F. Martin, for ap- proof of communications between husband pellant. John H. McNary, Dist. Atty., for and wife, like that which preserres inviolate respondent.

communications between attorney and client.

is subject to some exceptions dictated by BEAN, C. J. (after stating the facts). natural justice, and among these is that There was no abuse of discretion in denying whenever it becomes necessary to disclose the motion for a continuance. The applica- such communications, in order to protect the tion therefor did not set out a single fact to personal rights or liberty of the party to entitle defendant to a postponement. Its whom they were made, he is relieved from manifest purpose was to secure a delay un- the obligation of secrecy which the law othtil the decree theretofore granted in the di- erwise imposes. Thus, when a disclosure of vorce suit could be set aside, and the relation communications by a client to his attorney of busband and wife between defendant and is necessary to protect the personal rights of

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