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Pearson v. Sigmund

November 30, 1972

PEARSON ET UX, RESPONDENTS,
v.
SIGMUND ET AL, APPELLANTS



Appeal from Circuit Court, Yamhill County. Kurt C. Rossman, Judge.

Ralf H. Erlandson, Milwaukie, argued the cause and filed the briefs for appellants.

James W. Young, Forest Grove, argued the cause for respondents. With him on the brief were Bump, Young and Walker, Forest Grove.

In Banc. Tongue, J.

Tongue

This is a suit for an injunction against further cutting and removal of timber under a contract for the sale of such timber. Plaintiffs' complaint also demanded payment of $10,000 allegedly due under that contract. After the issuance of a preliminary injunction,

defendants filed a counterclaim for damages, including attorney fees, for the issuance of a wrongful injunction and for breach of contract, as well as damages for wrongfully representing that there was "suitable ingress and egress for the purposes of removing timber * * *."

The trial court denied relief to both parties, but held that defendants were entitled to proceed with the cutting and removal of timber under terms as stated in the decree. Defendants appeal from the denial of their counterclaim for damages, including attorney fees. Plaintiffs did not cross-appeal. Defendants then proceeded with the further cutting and removal of timber.

Plaintiffs have moved to dismiss defendants' appeal on the ground that defendants could not both appeal from the decree of the trial court and also accept its benefits. It appears, however, that the provisions of the decree denying plaintiffs' demand for an injunction and setting forth terms for the further cutting and removal of timber (from which plaintiffs did not appeal) are severable from provisions of the decree denying defendants' counterclaim. It also appears that the further cutting and removal of timber under the terms of the decree is not inconsistent with defendants' demand for damages, including attorney fees, for plaintiffs' previous wrongful interference with defendants' previous cutting and removal of timber. It follows, under the rule of Vaughan et ux v. Wilson et al, 203 Or 243, 247, 273 P2d 991, 279 P2d 521 (1955), and Hofer v. Hofer, 244 Or 88, 92-96, 415 P2d 753 (1966), that defendants are entitled to appeal from the provisions of the decree which denied their counterclaim and, at the same time, to proceed with the further

cutting and removal of timber under other provisions of the same decree.*fn1

We also hold, on the merits, that having found that plaintiffs are not entitled to an injunction against defendants to restrain them from cutting and removing timber, it follows that the preliminary injunction was wrongful and that defendants are entitled to ...


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