73 Or. at 166 hear and determine this action during the pendency of the appeal in the- equity suit in the Supreme Court, under Section 390, L. O. L., which provides, among…2 citing cases
- Gellert v. Bank of California, 214 P. 377 (Or. 1923).publishedThe distinction, however, between actions at law and suits in equity was rigidly preserved: South Portland Land Co. v. Hunger, 36 Or. 457, 468 ( 54 Pac. 815 , 60 Pac. 5 ); Finney v. Egan, 43 Or. 1 , 4' ( 72 Pac. 136 ); Donart v. Stewart, 6…
- Tot v. Gong, 170 P. 936 (Or. 1918).publishedOf course as ruled in Brice v. Younger, 63 Or. 4, 6 ( 123 Pac. 905 ), if the Circuit Court permits “The trial of the law action to proceed pending the appeal, it will be at plaintiff’s peril, for if the appellate court shall reverse the ap…
v.
PAULSON
delivered the opinion of the court.
1. The only question raised upon this appeal by the defendants is that the court erred in proceeding to[*166] hear and determine this action during the pendency of the appeal in the- equity suit in the Supreme Court, under Section 390, L. O. L., which provides, among other things, that the filing of a complaint in equity in the nature of a cross-bill shall stay the proceedings at law. It is now the settled procedure in this state that, where a suit in equity in the nature of a cross-bill has been filed for the purpose of staying an action at law, such action is stayed until the determination of the suit in equity. However, after the suit in equity has been dismissed, and an appeal taken from such decree to the Supreme Court, the plaintiff in the action at law has a perfect right to proceed in the action and have his case heard and determined. The taking of an appeal in the equity case does not operate as a stay of proceedings in so far as the law action is concerned, where the decree appealed from is favorable to the plaintiff in the law action: Finney v. Egan, 43 Or. 1 (72 Pac. 136); Donart v. Stewart, 63 Or. 76, 81 (126 Pac. 608). In such cases the complaint in a suit in equity in the nature of a cross-bill and for a stay of the proceedings is regarded as in the nature of an injunction, which, when the same is annulled by a decree of the Circuit Court, leaves the plaintiff in the law action at liberty to proceed. The efficacy of any judgment obtained by so proceeding in the action at law, if in favor of the plaintiff therein, would depend upon the result of the decree upon the appeal in the suit.
We do not need to enlarge upon the clear enunciation of the reason for this practice made by this court in the case of Donart v. Stewart, 63 Or. 76, 81 (126 Pac. 608), speaking through Mr. Justice Moore. There was no error in the trial court proceeding to try this action prior to the determination of the suit in equity[*167] upon, appeal; and as tbe decree of this court in the equity suit was in favor of the Oregon Surety & Casualty Company, and adverse to the defendants herein, the judgment is in full force.
Finding no error therein, the same is affirmed.
Affirmed.
Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice Burnett concur.