59 P.2d 261 | Or. | 1937
Lead Opinion
In Banc. This cause is an action at law in which judgment was entered in favor of plaintiff-respondent on October 18, 1935. No bill of exceptions was tendered or served within the 60 days thereafter. On January 2, 1936, appellant filed a motion in the trial court asking for an extension of time in which to file and present such bill of exceptions. The trial court took the matter under advisement and, on February 1, 1936, made the following order:
"It duly appearing that the judgment in this cause was entered October 18, 1935, and notice of appeal, together with undertaking on appeal were served on plaintiff by defendant and were filed in this Court on December 13, 1935, and the transcript of the testimony and other proceedings duly certified by Fred M. Rose, official reporter of this Court and in this cause upon plaintiff's attorneys December 23, 1935, and application having been made on January 2, 1936, to extend the time within which the bill of exceptions may be tendered and certified, and the court desiring that all matters may be presented to the Supreme Court including the effect of Section 2-703 Oregon Code and amendments on the discretion of the Court, and for good cause shown, and in the exercise of the discretion of the Court,
IT IS ORDERED that the time within which defendant may serve and tender the bill of exceptions is extended to include February 1, 1936, and the transcript of testimony and other matters material to the appeal filed in this cause December 23, 1935, hereby is certified as *105 a correct transcript of the testimony and as the bill of exceptions in this cause."
On June 5, 1936, respondent filed a motion in this court to strike the bill of exceptions from the records herein on the ground that said motion was not filed within the time limited by Oregon Code 1930, § 2-703, as amended by chapter 49, Oregon Laws 1931.
This court has had occasion to interpret said section, the most recent interpretation of which is found in Hart v. StateIndustrial Accident Commission,
It is so ordered.
Addendum
Plaintiff alleges, in effect, that she and Clifford Bird were married in the city of Seattle, Washington, on September 9, 1930, and, at the time of the filing of the complaint herein, were husband and wife; that two children, William Joe Bird and Patricia Joy Bird, were born of this marriage; that shortly after the marriage of plaintiff, the defendant wrongfully and wantonly and maliciously persuaded plaintiff's husband to leave home and abandon her and her children and to continue to live separate and apart from them; that by reason of the wanton and malicious influence and conduct of defendant, plaintiff's husband failed to perform his duties as a husband to her and as a father to their children; that through the acts of defendant, plaintiff has been deprived of the love, society, assistance and support of her husband, and her children have been deprived of the care, protection, and support of a father; and prayed for general and punitive damages.
To this complaint, defendant timely filed a motion to make the complaint more definite and certain. This motion asked that plaintiff set out what acts or mode or means defendant employed to alienate the affections of the husband of plaintiff; the time and place such acts were done; the kind and character of the influence used by defendant; when plaintiff's husband became estranged from plaintiff; in what manner the plaintiff failed to perform his duties as a husband and father; and what the malicious acts of the defendant consisted of whereby plaintiff was deprived of the love, society, assistance and support of her husband. *107
This motion was denied.
Thereafter defendant filed an answer consisting of a general denial.
The cause was tried to the court without a jury who made findings of fact and conclusions of law in favor of plaintiff, and entered judgment thereon. Defendant appeals.
The appellant contends that a wife has no cause of action in this state for the alienation of her husband's affections.
In the case of Keen v. Keen,
Defendant contends that the complaint is insufficient to maintain this action inasmuch as it only states ultimate facts and should set out with particularity wherein and how the defendant alienated the son's affections from the wife.
The complaint in the instant case alleges the fact of marriage, the requisite intent of defendant, and that the defendant maliciously caused plaintiff's husband to leave plaintiff and therefore deprive her of the "comfort, society and assistance" of her husband. Such a complaint, in an action for alienation of affections, is sufficient. *108
In the case of French v. Deane,
"Whether the present action be treated as one for enticing the wife away or for seduction, it is sufficient in either event to allege in the complaint the ultimate facts, without a statement of the arts made use of to accomplish the illegal purpose. Brown v. Kingsley,
This rule of pleading was approved in Williams v. Williams,
In the case of Warnock v. Moore,
"It was enough for plaintiff to plead the ultimate facts as to the alienation of her husband's affections by the defendant, and the acts done and the artifices used to accomplish the alienation are not required to be pleaded; indeed, these are largely matters of evidence by which the ultimate facts are to be proved."
In the case of Reavely v. Harris,
"The rule of pleading applicable in such cases seems to be that the pleader need not specifically aver the means used by the defendant to effect the wrongful alienation of the affections of the plaintiff's husband or wife, but that an averment of the ultimate fact is sufficient." Citing Williams v. Williams,supra. *109
In 30 C.J. 1133, the general rule is stated thus: "A statement of the ultimate facts of the alienation is sufficient without pleading the acts done or the arts used to accomplish the purpose." It is sufficient if the complaint sets out the fact of marriage, the requisite intent or malice, and the loss of consortium: 30 C.J. 1133.
In Jenkins v. Chism, (Ky.)
In 13 R.C.L. 1464, the general rule as before quoted, is followed therein, citing the Colorado case of French v. Dean, supra, with the further statement that the "rule is fully applicable where the action is against the parent." Citing note in Ann. Cas. 1912C, 1181; Gross v. Gross,
Section 1-602, Oregon Code 1930, provides:
"The complaint shall contain:
Counsel for appellant cites and relies on section 233, Bates' Pleading, Practice, Parties Forms (4th Ed.), which reads as follows:
"The first pleading shall be the petition by the plaintiff which must contain:
A statement of the facts constituting the cause of action in ordinary and concise language, * * *"
Section 1-602, supra, and section 233 of Bates' Pleading, etc., enunciate the general rule in regard to complaints. However in section 1906, p. 1721, Bates' *110 Pleading, etc., we find the rule in regard to complaints in actions for alienation of affections thus:
"A wife can sue for alienation of the husband's affection, resulting in loss of conjugal society. * * * The acts and artifices used to effect the alienation and separation of spouses, or the manner or the particular words of flattery, misrepresentation or advice, or the inducements, need not be set out, but only the ultimate facts of alienation and separation and its accomplishment by words and conduct."
"The complaint must set forth the essential facts consisting of the marriage relation, the loss of affection, society and aid of the plaintiff's spouse and that this was accomplished by the intentional wrongful or malicious conduct of the defendant. It is sufficient to plead the ultimate facts as to the alienation of affections; the acts done and the artifices used to accomplish the alienation are not required to be pleaded since they are largely matters of evidence." 3 Bancroft Code Pleading, 2501, section 1524.
To the same effect see: 2 Abbott's Forms of Pleading (3d Ed.), 1486; 3 Sutherland's Code Pleading, Practice Forms, section 4022.
The case of Sheard v. Oregon Electric Railway Company,
The judgment of the circuit court will be affirmed.
It is so ordered.
BEAN, C.J., and BAILEY and RAND, JJ., concur. *111