*1 336

Argued October reversed with instructions December

ALERY v. ALERY, Jr., et ux.

238 P. 2d 771 *3 argued appel- of Bunn, Baker, Austin cause for him on the brief was Carl Helm, lant. With G. Jr., La Grande. argued of La Cater, Grande, B. the cause

Charles respondents. for and filed a brief Justice, Before Chief Lusk, Rossman, and Brand, Justices. and Tooze, Latourette, Warner J. LATOURETTE, brought by plaintiff, ejectment

This an action in Alery, Alery, against Jr., John defendants, Marie possession Alery, recover Madeline wife, property La Defendants were certain real Grande. separate their answer and defense awarded a decree on answer, in their amended contained second timely reply. having Plaintiff, file a failed to Alery, appeals. replevin (Alery

This case and the case day al.) parties et handed involve the same down alleged and, same contract for are based on the argued together on were consolidated and reason, appeal. complaint ejectment

Plaintiff filed her on June 1950. defendants filed their 29, 1950, On June September 13, 1950, answer. filed On by adding name, motion to amend their answer party-plaintiff, plaintiff’s Sr., as a of John and father of husband, defendant, Jr. On September granted this motion. 15, 1950, 1950, defendants filed an amended

On October 7, 1950, answer. December without leave court, On defendants filed their second amended answer, being allegations material induced their home in defendants to leave Wisconsin to come promise give Oregon under a them the real question, *4 property personal property and also the in replevin guise under action, involved very “plaintiff John Sr. was sick and it would alleged give him an incentive to live.” It is in that, with, gave up request, compliance such gunshop and moved to in lucrative business Wisconsin they possession real La where took Grande improvements question property in and made valuable Oregon they gave coming also that in to same; up a inheritance which defendant John $25,000 plain- (who former wife of mother was also the Jr.’s by Alery, Sr.) promised him, and tiff, John foregoing, plaintiffs should be reason of the prop- estopped in to the real assert title themselves to erty question. judg- January defendants moved for 17, 1950,

On reply, pleadings for failure of ment on the plead, amended answer. On or to the second otherwise February affi- filed an 1951, 1, opposition defendants’ motion for davit contemporaneously pleadings and therewith reply the court. her clerk of tendered attorney, February defendants’ Charles 10,1951, On support filed an affidavit of defendants’ Cater, K. February pleadings. judgment on the On motion for right denied to file her on defendants’ second and entered plain- counterclaim, dismissed amended answer complaint and decreed defendants were the tiff’s simple property of the real in con- in fee owners troversy. legally amended answer was never

The second although plaintiffs, attempt an was so made served on attorney, by as shown the cer- do defendants’ appended second amended answer as tificate follows: hereby certify I

“I that made service of the foregoing upon amended second answer mailing copy, myself, certified to tiffs

341 attorneys plaintiffs, Cavanaugh, on for Helm & December 5,1950. R. Cater Charles

“/s/ “Attorney for Defendants” requires that an amended OCLA, 1-708, Section parties. upon opposing pleading Section be served parties by mail, authorizes service on 10-603, OCLA, proof proof as the the same and the of service shall be requires 1-616,OCLA, of service of a summons. Section by mail to state of summons certificate of service post place deposit in the office. the time and comply does not above certificate with alleged foregoing service statutes, therefore, and, of the second amended answer was ineffective. Tippery,

In P2d 558, we Cram Or complaint an amended filed and held that where authority upon party court was without served judgment against to render him. permits filing of an 1-1004,OCLA,

Section any pleading at time, course, amended period answering expire. for shall before the Section any permits the court at time OCLA, before 1-1006, any pleading be amended. An trial to allow amended pleading, except one as a matter of filed there course, cannot be filed without leave of court. In fore, the case only permission at the record not fails to show the bar to file the second amended answer, of the court but argument appeal counsel for defendants right that such was never secured from admitted legally second amended If the answer was not court. predicated follows that a could not it filed, thereon. suggested been that the court,

It has allow ing judgment thereby, amended on such second answer,

34:2 impliedly, filing at least consented to the of snch retroactively. answer We know of law, nor has one suggested, authorizing been under a court, situation permit such as plead- exists in this case, to an amended ing retroactively. to be filed Section 1-1006, OCLA, permitting pleading sanctions court’s to be obviously amended. The words, be,” “to refer some- thing in futuro. When defendants tendered their filing, *6 second amended answer clerk for unac- companied by permissive pleading, a order, such even legally if “filed,” marked was not filed and had no efficacy, plaintiff required cogni- was not to take alleged filing. zance of the when Therefore, defendants moved for a on the second nothing amended answer, there was in the record at stage proceedings which would warrant the allowance of such motion. practice Oregon,

We have held that the in as announced in Garrison v. Goodale, 23 Or 307, 311, 31 “* * * P 709, is that, Some reasonable excuse should appear by be made to affidavit, when the motion for leave to amend is made.” In the instant case an affi wanting. davit is adopt

If we the fiction, however, that such action equivalent § the court was to a consent under 1-1006, supra, then in the state of the record the court should permitted have plaintiff followed the law and in time reply OCLA), which to file her {%1-801, or at least spirit should indulgence have manifested the same plaintiff by permitting toward the her to file her ten reply. plaintiff dered Both the and the defendants at the moment of the court’s order were in the same position. plaintiff relative If should be considered as dilatory, then both had failed to observe technical statutory requirements respective as pleadings, to their hardship upon worked time, at that which, neither delay anywise contributed to in the other nor tardy her tender Plaintiff’s trial of the cause. neglect to secure defendants’ balanced answer; amended file their second consent to court’s trial court should have we think that therefore, plaintiff it tolerance toward as the same exhibited apparently have To done so did toward defendants. all revealed the record under the circumstances keeping fidelity in have been more with us before would day precept in be denied to the one should intimately particular in so court; moreover, matter, this pleaded by the to the defend entwined as it is contract (see Alery replevin al., case et ants date), be an would, effect, there avoid decided trying springing piece meal ance of of controversies parties. from the same transaction between the same permitted if were file Further, reply, hardship by suffer an added her she would allegations of certain contained reason defendants’ only allege second amended answer. Not do *7 gift personal property real but the of the also of a replevin property involved in the action. the Should judgment in allowed to stand case, replevin position urge in a case would be against plaintiff’s judicial admission interest since she deny gift personal property. failed such of appear attention has been called to a recital Our ing indicating in order under a rule that, plaintiff filing reply. in late her was It court, of opinion, that such rule would not however, is our forthcoming apply was until the since second legally served and filed, but, answer in amended any reasons of the because hereinbefore event, stated, we believe its strictness should have been relaxed in this instance. denying plain

From the order trial court judgment, tiff’s motion to aside there set are recit Alery, plaintiff, prop als that the John deeded the Sr., erty Alery, justification, to his Marie wife, without Alery that Marie Alery, refusal of John to submit himself Sr. to examination under sub poena. Alery, The record shows John Sr. filed an disclaiming any property interest in real affidavit nothing involved, and find in we record sustain the court’s recital that Marie in acted concert preventing testimony being with her husband in attorney represented taken. It is true that the same plaintiffs, imputing both that is but no reason for her sins husband. are not unmindful that the

We action subject failing himself Sr. to examination by deposition was a factor the trial court’s deter of the motion for mination as shown order, recital its which action we do through not condone but which could have been reached proper proceedings. contempt Leffing-

Much is made of the case of Whitefoot well, 90 Wis NW 182, 82. In that case the defendant plaintiff served the with an amended answer out of attorney plaintiff’s and course, admitted “due writing. service” thereof in pleading court said there the amended nullity may and a “was unauthorized mere be dis- regarded.” plaintiff accepted However, since pleading, service held that he waived objection. present accepted In the case never of the second amended service nor did answer, *8 legally proof served. that she had been service show of reply for after motion tendered a The fact that she judgment pleadings is no evidence made on was the plead- making of the unauthorized she ratified the her not of ing. dilemma in a that time she was At choosing. own assigned, arewe reason hereinbefore for the

Yet, opinion court its discretion the abused of the reply. permitting plaintiff her to file filing permit the with instructions to Reversed reply. plaintiff’s (dissenting).

LUSK, J. question power There can of the court the granting judgment to make the order pleadings. The second amended answer on. 1950. motion for filed on December 7, served on counsel for day. January At 17, 1951, and filed same tiffs on reply 1-717, filed. time no had been Section provides: O.C.L.A.,

“If the contain a statement new mat- answer constituting defense counterclaim, ter or and the reply or thereto demur within the fail may prescribed law, time defendant move judgment as he the court for such is entitled to * * * any pleadings; and at time when complete, pleadings in are either suit or action or plead court further, fails or declines may, grant any party moving upon there- motion, may appear as it such or decree for, moving party upon entitled the court the pleadings.” by Oregon as amended Laws 1-801,O.C.L.A.,

Section provides filed that a must be Ch. days filing Thus, ten after answer. within *9 346 a were default full month before the judgment

motion for on was made. In right these court has circumstances, this reverse say below unless we are able to judge manifestly guilty was of an abuse of discretion or that affirmative answer of the defendants does equitable not state facts sufficient entitle them to § agreed under 9-102, relief As we are all O.C.L.A. necessary sufficient, that the answer is it will be only questions. discuss the former these of It should be first observed that appealed only against Alery (who from is not appealed) against alone has also but her John party proceeding husband. He became a to the order pursuant September of the court entered 15, 1950, motion filed the defendants. The order recited Alery “that the said John is one of the owners of property plaintiffs’ record the real described complaint complete and that a determination of the controversy presence cannot be had without the of the Alery party said John as a and that the said Alery parties John one of the real in interest as plaintiff.” Though denominated a John actually, Alery was so far as the affirmative answer concerned, defendant, was and the order one which power to make. Kroschel v. See Mar Alery Hotels, 142 37, tineau P. 31, Or. 2d 818. John appeared regularly through afterwards in the case his attorney, Jr., Carl G. Helm, who, 18, on October 1950, filed a demurrer to defendants’ amended answer on Alery Alery. behalf both Marie and John Alery After John became the defendants attempted deposition. Through attorney to take his his pleading suffering resisted, he that he from a heart injuriously condition which would be affected examination and cross-examination. strain of oral testimony, hearing and oral on affidavits court, after over- in effect made an order October directing Alery objections ruling and of John deposition courtroom in the circuit be taken (John County Pendleton, court house Umatilla residence), Alery’s at place 3, 1950, on November Alery present p. and that John m., hour of 1:30 taking place of such for the time and himself at that duly regularly deposition. served appear requiring subpoena that time him at with place court’s recites 27,1950. The order on October *10 hearing respect- length adduced at the at the evidence Alery ability ing and his the of health of John condition undergo the of an oral examination. evi- to ordeal fully justified action. the court’s dence, so stated, as unnecessary out this It is to set the evidence because questioned propriety the court has not Circuit questioned it in the briefs Neither is Court’s order. Alery. plaintiff, filed Marie Her on behalf the attempted to defend the counsel have even course deposition. plaintiffs regard with which the took this Thursday, day on November Nevertheless, 2, the before taldng deposition, the fixed for the Mr. the time plaintiffs, appeared counsel for both before Helm, as judge him who made the order and informed present taking Alery not be for the of his Mr. would deposition physician, “on advice of his for reason a strain examination would be which would endanger even his life.” far as health, his So Alery’s deposition discloses, record never taken. judgment motion

It will be recalled that the for on pleadings plaintiffs on was served counsel for on day, January and to that after 17,1951. Prior inwere default, defendants’ E. Charles counsel, Cater, according requested plaintiffs’ to his had affidavit, reply. counsel to file a After the motion for plaintiffs’ was served and filed, February doing counsel waited until 1, 1951, before anything. He then, alone, on behalf of Marie opposition filed Ms own affidavit the motion reply general tendered a which is a denial. His affidavit corroborates Mr. Cater’s statement that the latter reply. asked him to file a It contains asserted matters 'by way doing unnecessary of excuse for not It so. is alleged to state the nature of these I think for excuses, there is not a member of the heard the court who case attempt who would them defend as valid in law or emphasized otherwise. Their utter lack of merit by following denying recital in the court’s order subsequently plaintiff, motion filed Marie judgment: simply vacate “The tendered is general denial and is verified counsel in client’s prepared, stead and could have been served verified, ’’ filed an is not even a hour. There within semblance Alery’s delay of excuse for the of two responding weeks before motion for pleadings. The record shows that rule of the County Union Circuit Court, which is referred judge allowing grants in his order the motion, five *11 days after a motion for has party may apply been filed in which the in default to be to the court relieved from the default. Counsel for plaintiffs pleads that he the was not familiar with the supposing no excuse; rule. of is even That, course, but, urged such rule, that there were no what can be in delay Nothing extenuation of the of two weeks? showing, suggested argu- the brief, or the oral plaintiff, Alery, the on behalf of ment Marie and opinion suggested nothing court, in of this save is- the considerations me to irrelevant what seem to be certain presently noticed. which will be been entered, After the vacating judgment on court for an order the moved the surprise ground ex- inadvertance, or mistake, the of neglect. this motion in an The court denied cusable April 1951.. In view of record order entered manifest there was recited, has it is that which been surprise excusable or mistake, inadvertance, neither neglect. denying In motion the court order this following among others: recitals, made * “* * argu- having and the Court heard the of counsel and the statements made ments argument open pre- counsel in court on said and being fully sentation of this matter and advised immediately prior premises, the commencement of finds that plaintiff, this John action, conveyed Alery, property his interest in said real Alery; plaintiff, not that deed has Marie said prior title thereto, recorded this date; been property proceeding in and the real described this Alery, plaintiff, Marie John vested in Alery, entirety and that deed as tenants creating placed was record Union such estate County, Oregon long prior commencement now did and that said record then this suit Alery plaintiffs, shows Marie John entireties; thereof as an estate be owners conveyance made in that said order Alery, might prosecute suit on behalf tiff, plaintiff John husband, of herself and her necessity Alery being one without the plaintiffs; taken on advice that this action was by Marie and claim made the contention counsel on Alery attorney the health of John to her testify or such could that he proceeding; established as that it has been in such *12 Alery a matter of record in this is case that John necessary proper party and that he is herein; give testimony deposition well herein; menced this to able oral plaintiffs, acting com- concert,

proceeding Alery in the name of Marie plaintiffs alone for and tion of use of both have failed permit taking deposi- to refused of the oral plaintiff, revealing John without any satisfactory reason; that the of the action attempting prosecute tiffs in suit in name refusing permit of Marie alone and in deposition the oral justification; taken, cause be is without or plaintiffs prompt application did make for judgment plead-, relief when the motion for ings filed nor for relief from the when entered.” determining question

In before facts us, the foregoing stated recitals cannot ignored. properly Even without those facts it would any be difficult to find basis in for a the record decision pres that the abused its discretion. But, court ence these the truth of recitals, which we have ground questioning, it seems me that for this court going long way setting indeed in aside the con judge sidered of the Circuit Court. The good believing, and had reason for believed, that the engaged in a were scheme to obstruct the judicial process contemptuously and had flouted his right order. He had the to take these into matters sought consideration when from a relief default was having inexcusably negli whose conduct one, been gent, demanding deny oppos that the court to the right ing party gave Chapman which the statute him. County, v. Multnomah 63 Or. P. 996. 180, 186, 126 delinquencies alleged As opinion of the court which calls it attention, irrele- are they indicated, I have as me, seems to vant. *13 the amended second say

It not correct to is There not served on the plaintiffs. answer was Plain of service. an imperfection proof simply Had this motion. by advantage tiffs have taken might would have undoubtedly to so result they chosen do the would permitted proof been that the court have Oregon v. to be amended. Weaver Southern service Goodale, v. 28 P. Barbre Co., 348, 350, 171; 30 48 Or. no P. There is suggestion P. 378. 468, 67,43 Or. 38 was not received by amended answer the second all mail, course of in due attorney plaintiffs’ received. indicates that it was so evidence from rules of departure procedure The other to their failure to obtain charged is file amended leave of court the second answer. Of should have obtained such leave. But here course, they and, no objection, by failing made again as as the course so, they they to do well took when to file waived finally sought permission reply, they have been any might open which otherwise objection situation the court said in to them. Of similar White- 90 63 N. 82: v. Wis. W. Leffingwell, foot is “But reason perceived why an to consent amendment to the power not or of an answer, making unauthorized ratify Any which does objection deprive amendment. be may waived. Even a jurisdiction may Wait, waived. 4 Prac. 2 Till. nullity 634; be & An irregularity Prac. 1033. waived may S. written, either or or consent, subsequent verbal by neglecting it is waived acquiescence; 498; 2 object Wait, the occasion arises. Prac. when 635; 2 Till. & Prac. No doubt Wait, supra. 4 Prac. S. attorney could have bound himself, plaintiff’s 352

by stipulation, to receive the amended answer. So objec by receiving he could himself bind it without ’’ retaining tion, and it. This he did. Flickenger, equally See, v. Kan. It is also, 14 308. Jeffs impliedly gave clear that the Circuit Court its consent (if necessary) amendment and that consent must be deemed retroactive the date of filing. Amendments before trial are so much allowed (York a matter Nash, 321, 326, as of course 42 Or. 24) P. 59; Morris, Henderson v. Or. that there no basis for “the trial court conclusion that court’s should have exhibited the same toward tolerance ’’ apparently tiff as it did toward defendants. Surely suggested unduly judge it will not be that the favored the he not assume defendants because did *14 guide, philosopher role of and friend towards the tiffs and, his own from files a motion, strike pleading they objection. to which made no There, opinion general course, can be no difference of that in “every litigant day shall have his in court and his rights only upon and duties determined a after trial controversy.” King the merits Mitchell, 188 434, 214 442, 993, Or. P. 2d 216 P. Neither can 2d 269. may, by litigant neglect, it be a doubted that his own right. forfeit And as is the when, here, case a litigant only negligent is but recalcitrant as well, poor position complain is in a he that he has been deprived right of his a trial the merits. See 49 Judgments, § C.J.S., 334. The in fact this statutory case, been filed within the time, properly the court could on motion have stricken it Alery, because of the conduct of aided and abetted refusing appear give Marie his deposition. §3-209, O.C.L.A.; Wheeler v. Burckhardt,

353 56 P. 644. Counsel for the defendants 504, 507, Or. in his affidavit he have made such swore that would motion. And was all the seeldng indulgence, defying time, while the court’s Alery’s for she refusal to court, to John give deposition. question for our determination is not whether judge,

one of had he been the trial would have made us, decision, the same but whether this court is warranted interfering with the Circuit exercise Court’s of its Lovejoy discretion. v. Willamette Co., Locks Or. 34 P. 660. In the face of a record such I as this, think isit not. opinion. C. J., concurs

Brand,