Coffin v. Hanner, Jennings & Co.

STEPHEN COFFIN, Plaintiff in Error, v. HANNER, JENNINGS & Co., Defendants in Error.

Error to Clackamas.

Upon motion for affirmance of judgment below, with an allowance of ten per cent. damages, as provided by statute, when it is uncertain whether the writ of error was taken in good faith or not, damages were not allowed.

A. E. Wait, for defendants in error.

OLNEY, J. The plaintiff fails to prosecute his writ of error, and it is suggested that his attorney is detained away from this court by sickness. The Chief-Justice who tried this cause, reports that the claim was a very old one; and the evidence was such as to leave it doubtful whether the verdict is or is not in accordance with truth. It being uncertain whether the writ of error was not taken in good faith, the Chief-Justice hesitates, in a case of uncertain merits, to impose a discretionary penalty, and I am willing to defer to his opinion.

Judgment affirmed without penalty.

DEADY, J., dissents as follows: Judgment affirmed without argument. On motion of defendants' counsel, the court refuses to assess ten per cent. damages. From this judgment I dissent; because, it is manifest that the cause was brought to this court for delay; the plaintiff in error having only availed himself of the forms of law to bring this cause into this court, and thereby retain the amount of the judgment in his own hands, instead of paying the same to the defendants, according to the determination of the said judgment.

The plaintiff, having chosen to retain the money, as he might do under the law, it is the duty of the court to give the defendants that compensation which the statute has intended they should receive in such cases.

Coffin v. Hanner, Jennings & Co.

Nor do I think the court is at liberty to consider the merits of the judgment, or the hardship, real or fancied, which it may impose on the plaintiff. Such questions are, of course, merged in the judgment itself.

AUGUST TERM, A. D. 1858,

regon.}

Supreme Court of the U. S. for the Territory of Oregon.

Ordered, That terms of the District Court be held in the city of Salem, in the county of Marion, on the first Mondays in April and September, and the fourth Monday in May, and the first Monday in November, annually, until otherwise ordered. And in the city of Portland, in the county of Multnomah, on the first Mondays in May and October, and the third Mondays in June and November, annually, until otherwise ordered. And in the village of Roseburg, in the county of Douglas, on the first Mondays in March, May, September and November, annually, until otherwise ordered, and limit the duration of each term to six days.

No written opinions were given at the August Term, 1858.

Constitutional provision in reference to the Supreme Court of Oregon, article 7th, section 2d.

"THE Supreme Court shall consist of four justices, to be chosen in districts, by the electors thereof, who shall be citizens of the United States, and who shall have resided in the State at least three years next preceding their election, and after their election to reside in their respective districts. The number of justices and districts may be increased, but shall not exceed five, until the white population of the State shall amount to one hundred thousand; and shall never exceed seven," &c.

SECTION 3. The judges first chosen under this constitution

shall allot among themselves their terms of office, so that the term of one of them shall expire in two years, one in four years, and two in six years; and thereafter, one or more shall be chosen every two years, to serve for the term of six years.

SECTION 4. Every vacancy in the office of judge of the Supreme Court shall be filled by election for the remainder of the vacant term, unless it would expire at the next election; and until so filled, or when it would so expire, the governor shall fill the vacancy by appointment.

SECTION 5. The judge who has the shortest term to serve, or the oldest of several having such shortest term, and not holding by appointment, shall be Chief-Justice.

"An Act to fix the times and places of holding the Terms of the Supreme and Circuit Courts," passed June 3d, 1859.

SECTION 1. Be it enacted by the Legislative Assembly of the State of Oregon, That a term of the Supreme Court shall be held at the seat of government, on the first Monday of December next; and thereafter, at the seat of government, on the second Monday in December; and at Portland, in the county of Multnomah, on the second Monday in July, annually.