The Dalles daily chronicle. [volume] (The Dalles, Or.) 1890-1948, 1895-07-25
AND THE
COURT.
DOEPH
SUPREME

y
Dolph criticises decision of the supreme
court in the case of Schmidt VS.. the Or.
Gold Mining Co., and the Oregonian,
as usual, backs the ex-senator and echoes
his sentiments. The statements of Mr..
Dolph and the comments of the Oregon
ian make it to appear that the supreme
court have committed most grave
error and established a precedent unjust
and contrary to all equitable and legal
rules, and rendered a most outrageous
decision. Believing that there must be
some explanation of the matter, we in
terviewed some of the attorneys of this
city concerning these criticisms and
learned something of the history of the
decision complained of.
1t seems that the circuit court for
Union county, Judge Clifford presiding,
rendered decree in the case decreeing
the sale of the mortgaged premises and
that the proceeds of the sale be applied
in satisfaction of $500, adjudged to be
reasonable attorneys fee, and certain
costs which appear to haye aggregated
$939.14, and directing that the attorneys
fees be preferred lien upon the pro-
ceeds of the sale, and that either of the
several attorneys among whom the fee
was divided might enforce payment by
an execution.
Upon its face the decree appears to be
an outrage, and as The learned ex-sena-
tor says in his brief, and the Oregonian
repeats, "a scandal upon the admins
tration of justice;" and had they re-
buked the circuit judge who permitted
such an outrage no one could or would
answer them; it appears from the re-
port OF the decision of the supreme court
that this outrageous decree was entered
by consent of plaintiff and defendant;
had the ex-senator and the Oregon1an
gone so far as to suggest that the decree
had the appearance of jobhery between
the attorneys and circuit judge we would
not have seen very good defense to such
an lnsinuation; we should certainly
have Joined them IN criticising the cir
cult court. But as we understand the
decision of the supreme court, as shown
us by local attorneys, it was helpless in
the matter. The court says:
cit has been held by this court that
by consenting to the rendition of
Judgment against himself the defendant,
in effect, valves his answer and thereby
leaves no issue to be tried, and that from
such judgment no appeal lies.
The recitals in the decree show that the
defendant gave its consent and
there being no eUidence an the record to
guide it in determining what would be
reasonable, we conclude that the parties
intended that the court should ascertain
the amount in its own way and that they
should be bound by the result. <
So we have here q decree which the !
PLAINTIFF, through his attorneys specific |
ally requests the court to make, and the |
defendant has upon the record consented |
to every feature of it. Now the
party making the request appeals to this
court, and demands that the decree be
reused in part without so much as mov-
ing the lower court to modify it's find
ings or calling its attention to
errors or irregularities.
Among the attorneys interviewed by
The CHRONICLE it seems to be the unan-
imous opinion that the proper course
would have been for the, learned ex-
senator to have moved the lower court TO
modify the decree, make a showing that
the parties had not consented to it and
that 1T was contrary to their wish; then
had the lower coprt refused to modify
the decree, the question could be raised
In the supreme court. The latter court
takes the record as it is sent up from the
circuit court and in the absence of a
showing to the contrary assumes its re-
cltais TO be true. In this case, we are
told, the attorneys for the appellant
made the mistake of appealing from
decree assented to without having shown
that 1t was not assented to; the supreme
court has not, it appears, settled the law
that an attorney can, in a case like the
one referred to, take decree in favor of
himself and against his client and that
such decree is not appealable, as the
ex-senator and his echo
suggest, or anything of the kind it has
simply reiterated well known rule of
practice which the learned ex-senator
should have known that consent DEGREES
cannot be appealed from; and that
parties desiring to raise the question as
o whether they are consent DEGREES
must first in the lower court show that