Image provided by: University of Oregon Libraries; Eugene, OR
About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Aug. 11, 1911)
PATH CAPITAIJOUKWAU BALEM. ORKGO.V FRIDAY, AUGUST 11. 1911. PAGE FlVB ADVANCE SHOWING OF Ladi THE QUALITY STORE ies Tailored Suits We take great pleasure in announcing to our many friends and patrons that we have just received our first installation of New Falls Suits, We wish to thank you for the liberal patronage which you have extended to us the past season, that has enabled us to nearly double the business of this department over any former Spring season, We have put forth every effort in selecting our Fall stock, having scoured the markets of New York, Philadel phia and Cleveland, and we feel assured We Can Show You the Suit that Will Meet Your Ideal We can show you that particular suit "the suit" which .combines all the new touches of fashion, a well-fitting Tailored Suit of Individual Style, You will agree with us that never before have the suits been more beautiful, the colors richer, We are showing all the new weaves in mannish worsteds, serges,, etc, in dark blue, Havana brown: ,. coronation red, etc, etc, PRICES $10 TO $50 THE QUALITY STORE I Summer Shoe Bargains STOCKTON OREGON SUPREME COURT DECISIONS Fall Text Published bj Courtesy of F. A. Turner, Reporter ef the Supreme Court Estate of Jnmes TV. Toung, Multno. mnh County. ! In the matter of the estate of limes W. Young, deceased. Appeal from circuit court Tor Multnomah county. Hon. H. J. Bran, judge. On motion for rehearing. Reversed May 31, 1011. 116 Pac. 95. Fee & Slater and Frederick W. Btelwer, for appel lants. Douglas W. Bailey, for re spondent. McBride, J. Motion de nied McBride, J. The petition for re hearing in this case Is based solely upon the failure of contestants to serve a notice of appeal upon the personal representatives of Mrs. Caroline Phillips who died pending the hearing of this cause In the cir cuit court. The facts of the case are these: Mrs. Phillips and the other contes tants appeared together in the coun ty court to contest the validity of the will presented by Mabel Warner, pro ponent. In that court they procured a decree, declaring the proposed will a forgeryT and void. Proponent tp pealed from this decree to the cir cuit court, and, pending a hearing in that court, Mrs. Phillips died. No substitution was made and the cause was heard and determined as though Mrs. Phillips were alive, and the de cree of the county court was there reversed, and a judgment for an un specified amount of costs was en tered against all the defendants, In cluding Mrs. Phillips. The contes tants appealed to this court and here, or the first time, on motion to dis miss the appeal, counsel for propo nent suggested that Mrs. Phillips was an adverse party; that counsel' could not appear for her on this ap peal without substitution; and that, as her legal representative had not been so substituted, all adverse par ties had not been served and, there fore, that the attempt to appeal was nugatory. This court haB not yet decided whether a judgment, given against a person who dies before the hearing and submission of a case, is void or whether It is merely voidable, and the authorities are hopelessly divid ed upon that subject. But upon every principle of reason and justice such a judgment ought to be held an absolute nullity. Mrs. Phillips at her death had a decree In her favor, conferring upon her valuable prop erty and pecuniary rights. Her H H i FT I f A T FT A A 1 J W IW n s H H n ii H a H a H II II II II 11 II II U II B u a n ii H II II II II II 13 II H ri 13 It H II tl II M n n II II I s 5c FA MM 13 .4 J -K AM tl We bought 3000 yards of this splendid wearing mat ting, very desirable for bedrooms and dining rooms. Easy to keep clean, colors to suit everyone; wears like iron, can be sewed like a carpet. Regular O price 45c. While it lasts . . . . . Price includes sewing. Inspect our New Draperies, New Curtains, New Nets and New Art Muslins. This is the most complete line of its kind in the city. Imnerial Furniture 13 u ii ii EI n n u ii ii a M n El a n ri u u n ii n ri ri n n u n u ri u ii 11 ii ii 11 n u n M 1 77 N. Liberty Street. Salem, Oregon II II ti 11 M II II 11 II m death revoked the authority of coun sel to appear and represent her on her estate In the circuit court. The decree of the circuit court attempted to take these rights away and fur ther to give a practical judgment against her for costs. While many courts, and perhaps a majority, have held that such a judgment is voida ble and not void, their reasoning does not convince us that a judg ment against a person not In exist ence is anything other than wholly voldj or that It can possibly bind any one. It may well be granted that, where a cause has been argued and submitted and the decision is in the breast of the judge and nothing re mains but the ministerial act of causing It to be recorded, this func tion may be performed nunc pro tunc after the death of a party; or where default has been, taken and bofore, entry of judgment the death of a party occurs, the entry of judg ment, which is a mere ministerial act of the clerk, may be proper an'd regular but that, where death oc curs before a hearing upon the mer its, the court may pass judgment upon the rights of a decedent and deprive him or his unrepresented es tate of valuable property, is a propo sition so illogical and unjust that we cannot assent to It, even though decisions parroted down from one court to another, with hardly a pre tense of reasoning to support them, may preponderate in number over those holding the contrary doctrine. At common law a suit was abated 6y the death of a party: 2 Mod. 308; 2 Saund. 72 M. This rule is relaxed by Sec. 38 L. O. L. which provides that the action shall not abate by the death of a party, if the cause of ac tion continue or survive, and that the court, .at any time within one year thereafter, on motion, may allow the action to be . continued against his personal representatives or success ors in Interest. The effect of this section Is to suspend the cult until such substitution Is made: McBride v. N. P. R. R. Co., 19 Or. 64. ,Jt Is conceived that such, suspension hns the same temporary, effect on fie rights of the parties as though the suit were actually abated; that nei ther party can move In the ease un til a substitution is ordered ; and that during the interval between the death of the party and substitution of his legal representatives, the dis abilities of either party remain the same as at common law. Commenting upon an act similar In terms to that in force In tnls state, the supreme court of Illinois say: "In the nature of things, the deceased defendant cannot plead in abatement, or otherwise -interpose t,he fact of his own death, and his le gal representatives, until brought into court by the plaintiff us con templated by the Btatute, are not supposed to be present, or to itnow anything about the pendeucy of, the suit, and to hold a judgment ob tained under such circumstances binding upon them, would seem not only Inconsistent with well settled principles, but would probably lead to the perpetration of great frauds. We are, therefore, clearly of opinion that such judgments are, as already stated, absolutely void." Life Asso ciation of America v. Fassett, 102 III 315, 328. Among other cases holding to the same effect may be cited: Tarleton . Cox, 45 Miss. 430; New Orleans & C. R. Co. v. Bosworth, 8 La. Ann. 80; McGreery v. Everdlng, 44 Cal. 284; Lynch v. Tunnell, 4 Harrington 284; Meyer v: Hearst, 76 Ala. 390; Guyer v. Guyer, 6 Houston (Del.) 430; Wels v. Aaron, 75 Miss. 138; Kager t. Vickery, 61 Kan. 342. Many other cases might be cited to the same ef fect and quite as many, perhaps more, to the contrary, but from a consideration of the rule as It ex isted at common 'law, and giving our statute a fair and reasonable con struction, we do not believe that the common law rule has been so far abrogated as to permit a trial and decree upon the merits as against a dead person and that such decree Is an absolute nullity. We do not understand that deci sions of this court hold the contrary. In Mitchell v. Schoonover, 16 Or. 212, defendant duly served .with t summons, appeared and demurred to the complaint. The demurrer was overruled and he failed to plead fur ther. Being in default for want of answer, the plaintiff took judgment against him. He died on the same day. The judgment against him was held valid upon appeal. But In that case the defendant' was In default be fore his death. Nothing remained to be done but to enter the judgment which was a mere ministerial act of the clerk, flowing naturally from the default. In considering cases of this character, courts have not always been careful to distinguish between the rendition of a Judgment which is a judicial act" and the mere entry of a Judgment on the record, which Is ministerial act, and from failure to make tms aisunction nave Deen ire W ently led Into the illogical and mis chievous position of holding that a valid Judgment could be rendered against a person not then In exist ence a mere memory. Technically speaking, the tran script discloses no decree in favor of proponent for costs, that could in Its present condition be enforced against anybody. That amount of the taxed costs nowhere anpeara in the decree which adjudges that she recover "her costs and disbursements herein sus tained and expended on this appeal; and the costs and disbursements for transcript on this appeal; and the costs and disbursements paid the stenographer frr extndlng steno graphic notes of the testimony of witnesses taken in the trial in the court below amounting to $ ; and that she recover from respondent all her costs and disbursements in the countv court sustained and expended in this cause to he taxed, and that execution issue therefor." Such a Judgment is a nullity as to costs un til they are pronerly taxed and en tered In the judgment: Black on Jurlf. 2 ed.) Sec. 118. Whatever may be the condition of the law In cases where the success of one plalnt'ff unon anneal mny Im pose nn additional burden unon a co nlnlntlff. who has not Joined In the anneal or. been served with notlco thereof, we ar satisfied thai in this case no such burden can 'he thrown irnnn (he ette of Mrs. Phllllns and that, therpfnre. she is not an adverse nartv within the meaning of our stptnte. The petition Is denied. Peck t. Skelley Lumber Co., Douglas Ins County. G. W. Peek, appellant, v. Skelley Lumber company, a corporation, re spondent. Appeal from the circuit court for Douglas county. The Hon. J. W. Hamilton, Judge. Argued -and submitted July 27, 1911. Albert Abraham, and (Otto Irving Wise, on brief) for appellant. F. G. MIeelll, John T. Long and (Chas. L. Hamil ton, on brief) for respondent. Eakin, C. J. Reversed and re manded. This Is an action on a promissory note for the sum of $1389.38. De fendant is a corporation organized under the laws of Oregon, doing business in Douglas county. Plain tiff had sued defendant In Douglas county and also in San Francisco, California, upon an alleged debt of about $4,000. On February 10. 1909, while these actions were pending, the subject of . the litigation was com promised between them. for the sum of $1350, for the payment of which defendant Issued to plaintiff Its draft upon Itself, payable at McKeesport, Pennsylvania. John K. Skelley was the president and general manager of defendant company and resided and had his office In McKeesport This draft was presented to him for payment, but he was unable to pay It, and this note, which Is signed "8kelley Lumber Co., John K. Skel ley, President," was tendered to plaintiff through defendant's attor ney at San Francisco, In lieu of pay ment Plaintiff would not accept the note until it had been epdorsed by Skelley and White, two of defen dant's directors. The note Is paya ble five months after date and in cluded Interest The only defense to the action Is that the president had no authority to sign the note, and, therefore, that It is void. Section 3 of Art IV of the By-laws of defendant corpora tion reads as follows: ' "The Presi dent shall be .general executive offi cer of the corporation shall Hundreds of Pairs of Ladies' Oxford Ties and Strap Pumps i Colors: Black, Tan and- Oxblood, IN OUR BARGAIN BOXES AT . ...$1.00 PER PAIR These are odd lots from lines worth $2,00 to $3.00 only a few pairs of a kind, but all the sizes in the differ ent lots, We are determined to close out all broken lines of Summer Goods before the season closes, Another Large Lot of Ladies' Summer Shoes at $1.50 Broken Lines Worth $2,50 to $3,85 ' We've Just Placed a Large Lot of LADIES' LACE HOSE ON OUR BARGAIN TABLES AT OC PER PAIR Reduced from 45c and 50c lines, Colors: Black, Tan, Light Blue and White Another Lot at 15 Cents Per Pair Reduced from 25c lines, Mostly Blacks and Tans It will pav you to help us clean outbroken lines at these REDUCED PRICES jffi sign all stock certificates, written contracts, deeds, checks or warrants upon the Jreasurer, and Bhall per form gejvenally all the duties usually appertaining to the office of president of a corporation. He shall have gen eral charge (Bubject to the control of the board, of directors) of the busi ness affairs of the corporation, may sign and endorse bonds, bills, checks and promissory notes on behalf of the corporation, but he shall have no power to Incur any debt on behalf of the corporation, without the previous consent of the board of directors. Upon the trial of the action before a Jury verdict was rendered for de fendant by direction of the court. Plaintiff appeals. Eakin, C. J. There is but one question before us. Had the presi dent authority to sign the note, and this seems to be determined In favor of the plaintiff by the language of Art. IV. Sec. 3 of the by-laws, by which he is made the general execu tive officer of the corporation and Is given general charge of the business affalr3 of It, and is authorized to sign promissory notes on Its behalf. By the succeeding clause, It is provided that he shall have no power to Incur indebtedness, but in this case the lia bility was Incurred by the corpora tion which was adjusted and the amount ascertained by it, and by its authority a draft was Issued upon Itself for the payment of the amount, which was presented to Skelley at McKeesport for payment, and he be ing unable to pay the draft executed the note sued on as evidence of the debt. This was within the express authority given him by the by-laws. It is not questioned that the corpora tion owed the debt evidenced by the note. The authorities cited by defen dant's counsel In support of Its con tention, relutlng to the power of the managing agent of the corporation, are canes of implied authority, aid most of them are expressly placed upon the ground that there was no express authority to the agent. Cases In this court fully settle this question. Crawford v. Albany loo Co. 36 Or. .ri35 upon which defendant largely rests Its case, recognizes the distinction between the express and Implied authority. In which Mr. Jus tice Dean says: "No by-law or reso lution was ever adopted by the cor poration atuhorizlng its president and secretary or any one else to make and execute promissory notes for or in Its behalf . It Is elementary law that the president and secretary of a corporation, as such, have no power to bind the cor poration by the execution of promis sory notes or other contracts, but such authority 'must be derived from some by-law of the corporation, or some special order, or must be Im plied by some acquiescence or ratifi cation on the part of the corpora tion' ". And In Balnes v. Coos Bay Nav.' Co., 45 Or. 307, after stating that Mr. Graham, the general mana ger of the defendant corporation, had no express authority to execute ne gotiable Instruments on behalf of the corporation, Mr. Chief Justice Moore says: "The rule Is general that no managing agent of the corporation, possesses Implied power to bind It by Issuing, accepting or In dorsing on Its behalf negotiable ln- struments . The law re quires that such an agent must pos sess express authority before he can bind his principals by putting In cir culation negotiable Instruments." This Is a statement of the general rule and then the opinion discusses the exceptions. We think the by-law quoted Is not of doubtful meaning and disposes of the case against defendant's conten tion, in the by-law quoted, the words In brackets "subjeot to the control of the directors" means that they may control his acts even In the matters expressly delegated to him, but, unless they do take some action, the acts authorized may be done by him without other authority from the board. That language Is a reservation in the board of a right to control his acts, but the authority Is complete in the matters enumer ated until the board has affirmatively directed otherwise. See nates v. Keith, Iron Co. 7 Metcalf, 224. The Judgment Is reversed and the cause remanded. His Drenni Is True. f TNITKD I'DEBS LHARHD WII1B.1 Stockton, Cal., Aug. 11. Charles W. Rathbun, of LodI, who recently became imbued with the idea that he was dead, brought his hallucination to a reality today at Clark's sanitar ium, when he hanged himself to the bar of the cell with a towel. Rathbun had to bend his knees to throw hla weight on the improvised noose. - ' -o Storehouse Hlew Up. fnNITKD IJKNS I.RASCD W1HII.J Newburgh, N. Y., Aug. 11 A storehouse on the New York aque duct, near Cornwall, containing 1100 pounds of dynamite, blew up today. No trace of the building was left, and the caretnker s mlsntng. The con cussion shook the earth for miles around. o Gates' Son to Wed. Minneapolis, Minn., Aug. 11. That Charles O. Gates, son and heir ot Jorn V.r Gates, th Hpe::tuoula" m!l llonalie who died recently in Paris, will wed Florence Hopewood, of Minneapolis, was the announcement mnde here today. Miss Hooewoo'l is now in Paris with her m-jther. Bo sure and take a bottle of Cham berlain's Colic, Cholera and Diarrhoea Remedy with you when starting on your trip this summer. It cannot be obtained on board the trains or steam ers. Changes of water and climate often causes Budden attacks of diar rhoea, and It Is best to be prepared. Sold by all dealers. OLAVIS IS GIVEN A rilOFITABI.R JOIJ Sacramento, Cal., Aug. 11 At a special meeting of the California Con servative Commission, held this af ternoon, Louis R. Glavls, who wan ousted from tbo department of the in terior by Secretary Ballingor for ex posing alleged fraudulent Alaskan coal land deals, was appointed as sec retary of the commission at $3600 a year. Glavls will bo In Sacramento to morrow to meet the members of the commission, and discuss plans for im mediate work. o Ufe Saved at Deatn's Door. "I never felt so near my grave," write W. R. Patterson, of Welling ton, Texas, aa when a frightful cough and lung trouble pulled mn down to 100 pounds, In spite of doc tor's treatment for two years. My father, mother and two slBters died , of consumption, and that I am alive today is due solely to Dr. King's New Discovery, which completely cured me. Now 1 weigh 187 pounds and have been well and strong for years." Quick, safe, sure; its the best remedy on earth for coughs, colds la grippe, asthma, croup, and all throat and lung troubles. 60o and $1.00. Trial bottle free, Guaranteed by J. C. 1 ' ! if i i