Ehrman v. Astoria Railway Co.

Opinion by Mr. Justice Moore.

*379 1. The defendants’ counsel contends that evidence dehors the record is admissible in this court, when it affects proceedings before it on appeal; a.nd that from such evidence in this case it is apparent that the plaintiff has waived his right of appeal; while plaintiff’s counsel contend that even if such evidence be admissible, it fails to show such waiver; that the issuing of an attachment and its levy upon the property of a debtor to further secure the debt does not destroy the lien given by statute for labor performed or material furnished in improvements made upon real property; and that the remedies by attachment and statutory lien are cumulative, and both may be prosecuted at the same time. The defendants’ contention is supported by many authorities, and the correct rule undoubtedly is that evidence dehors the record, to establish certain facts, is admissible in an appellate court, affecting proceedings before it upon appeal, and that the admission of such evidence, when uncontroverted, is not an assumption of original jurisdiction: Dakota County v. Glidden, 113 U. S. 222 , 5 Sup. Ct. 428; Elwell v. Fosdick, 134 U. S. 500 , 10 Sup. Ct. 598; Bolen v. Cumby, 53 Ark. 514 , 14 S. W. 926 ; Portland Construction Company v. O'Neil, 24 Or. 54 , 32 Pac. 764 .

2. It may be conceded that debts for labor or material may be secured both by statutory lien and attachment (Phillips on Mechanics’ Liens, § 311), but in this state an attachment can only be had in an action upon a contract for the direct payment of money which has not been secured by mortgage, lien, or pledge upon real or personal property (subdivision 1, section 144, Hill’s Code), and before the writ can be issued the plaintiff, or some one in his behalf, must make and file an affidavit showing these facts: Hill’s Code, § 145, subdivision 1, It will thus be seen that a claimant cannot make an affidavit for an attachment when his debt is secured by a statutory lien. A party *380 may, for a consideration, waive his right to appeal, by a stipulation clearly indicating his intention to do so, and an appellate court will enforce such stipulation by declining to pass upon the questions thus formally waived: Bay lies on New Trials, 18; So, too, the right to appeal may be waived by acts of the party which are inconsistent with the assertion of that right. As was said in Moore v. Floyd, 4 Or. 101 , “the right to proceed on a judgment and enjoy its fruits, and the right to appeal, are not concurrent; on the contrary, they are wholly inconsistent.” When the court dismissed the suit, the plaintiff was enabled to take proceedings for a judgment and. reap its fruit by making the necessary affidavit and securing an attachment of the property, and from these acts he has derived a benefit which he can enjoy until the decree is reversed, when, by dismissing his attachment, he can hold the property under his statutory lien; but if the decree be affirmed, he has already secured a lien upon the same property by the levy of his attachment, and iq this fortunate condition he can speculate upon the probabilities of its affirmance or reversal, well knowing,—if this appeal cannot be dismissed, —that in either event his debt is secured. The attachment of the property was inconsistent with the right of appeal, and, the plaintiff having elected to pursue that remedy, has waived this right. It follows that the appeal must be dismissed, and it is so ordered.

Dismissed.