123 P. 1092 | Or. | 1912
Lead Opinion
delivered the opinion of the court.
In Maxwell v. Frazier, 52 Or. 183, at page 188 (96 Pac. 548, at page 550: 18 L. R. A. [N. S.] 102), Mr. Justice Eakin said:
“In several cases in this court, it has been held that the defendant had waived his right to object to the jurisdiction of the court when he had answered, without objection, to the jurisdiction, and had claimed affirmative relief. Kitcherside v. Myers, 10 Or. 21; Municipal Security Co. v. Baker County, 33 Or. 338 (54 Pac. 174) ; O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004) ; Killgore v. Carmichael, 42 Or. 618 (72 Pac. 637). But a distinction must be made between an entire lack of matter of equitable cognizance and cases within the field of equitable jurisdiction, in which an element essential to complete jurisdiction is lacking. In the former, the objection is not waived by failure to interpose it at the proper time,' but it is available at any stage of the proceeding; while in the latter, if the objection is not seasonably interposed, it will be deemed to be waived. In such a case, the subject of the controversy is equitable, and the relief sought such as equity alone can grant. This distinction is well stated in 16 Cyc. pp. 127, 128, where the authorities are collated. If the case is within the general field of equitable jurisdiction, the absence of any condition which might defeat the jurisdiction, if seasonably raised, may be waived, provided it is competent for the court to grant the relief sought, and it has jurisdiction of the subject-matter. The application • of the doctrine of waiver in equity cases is. practically restricted to cases of con*437 current jurisdiction. This is the ground of the holding in Kitcherside v. Myers, 10 Or. 21, where it is held that the right of either party to the land in question is equitable, and the objection ‘that a court of equity would not take jurisdiction, because the plaintiff had an adequate remedy at law,’ comes too late after answering.”
In the latter case, 10 Or. 21, at page 23 of the opinion, Chief Justice LORD said:
“Our view is well expressed in Creely v. Bay State Brick Co., 103 Mass. 515, in which the court say: ‘An objection of this kind should have been made on demurrer, or at least should have been specifically relied upon in the answer, and not raised for the first time at the hearing upon pleadings which suggest no such ground of defense. Under such circumstances, the court could hardly do otherwise than retain the case, provided it is comnetent to grant relief, and have jurisdiction of the subject-matter, and of this we have no doubt’.”
O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004), was a suit to remove a cloud from the title to real estate, of which plaintiff was out of possession. Mr. Justice WOLVERTON, in the opinion in this case, said:
“That a court of equity has jurisdiction to remove a cloud from title is undoubted; but, as a condition of the court’s exercising it, the plaintiff must be in possession, if he is the owner of the legal title, under such circumstances that the law can afford him ample relief. This condition, however, can be waived by the parties; and if the court proceeds with the exercise of jurisdiction it can grant the equitable relief appropriate in such cases.”
In Municipal Security Co. v. Baker County, 33 Or. 338 (54 Pac. 174), the relief sought was purely equitable, but the defendant objected to the jurisdiction, because plaintiff had an adequate remedy at law; and it was held that the objection was waived by answering to the merits.
Unless the matter is wholly beyond the domain of equitable cognizance, no objection to the jurisdiction of
The above authorities are so clearly in point that but little remains to be said. It is not questioned that the court had general equity .jurisdiction to grant the relief prayed for. The want of possession of the land by the plaintiff was waived by the defendants when they failed to plead such want of possession, either by demurrer or by a special plea in their answer, and pleaded to the merits.
Counsel for defendants in the above contention cite and rely upon the case of Moore v. Shofner, 40 Or. 488 (67 Pac. 511), which we do not deem to be in point, for the reason that in the case cited the defendant first filed an answer, denying plaintiff’s allegation that no one was in possession, asserting actual possession in himself, averring that the court was without jurisdiction, and praying that the suit be abated. This answer was treated as in abatement, and the plea denied by the court. Thereupon the defendant filed another answer, in which, after repeating the first, he denied plaintiff’s title, asserted title in himself and possession for more than 10 years, pleaded an estoppel,. and again denied the court’s jurisdiction.
“Under our system, a defendant is entitled to set up as many defenses as he may have; and, if one of them is at*439 law and another in equity, he may, if he sees proper, set his legal defense up by answer, and at the same time file a complaint in equity in the nature of a cross-bill, setting forth his equitable defense; or he may depend alone upon his legal defense, and, if unsuccessful, resort to an original suit to enforce his equitable rights” — citing Hill v. Cooper, 6 Or. 181; McMahan v. Whelan, 44 Or. 402 (75 Pac. 715).
In the case of Spaur v. McBee, 19 Or. 76 (23 Pac. 818), this court, at page 79, passed upon the question and reaffirmed the principle laid down in a former case in the following language:
“This leaves the question of estoppel to be considered. In Hill v. Cooper, 6 Or. 182, the precise question involved here came before this court for the first time for adjudication; and, after a careful examination of the point, it was held that, under the statute which allowed an equitable defense by cross-bill in actions at law, a party might rely upon a legal defense in an action, without being thereby precluded from afterwards asserting his equitable title in an original suit.”
In Borcherling v. Ruckelshaus, 49 N. J. Eq. 340 (24 Atl. 547), the court held that, where a defendant, in an action at law, offers to prove an estoppel in pais against the plaintiff, and the offer is overruled by the trial court, on the ground that the defense is not cognizable in such action, and the defendant takes no exception, but acquiesces in such ruling as the law of the case, he is not estopped from filing a bill in a court of equity setting up the same facts, to enjoin the enforcement of a judgment obtained against him in the said action.
In Clark v. Hindman, 46 Or. 67, 70 (79 Pac. 56, 58), Mr. Justice Mooke, speaking for the court, says:
“It is also maintained by defendants’ counsel that, in the action of ejectment brought against her, plaintiff had an opportunity to set up, by way of cross-bill, the facts*440 now relied upon as the basis of equitable relief; but, not having done so, she is estopped by the judgment rendered therein. Our statute allows an equitable defense by cross-bill in actions at law. Section 391, B. & C. Comp, (now L. O. L. § 390) ; and in construing this provision it has been held that a party may rely upon a legal defense, without being thereby precluded from after-wards asserting his equitable title in an original suit.”
It is stated in 1 Black, Judgments (Section 365), that equity will relieve a party against a judgment obtained against him, if he was prevented from setting up his defense by fraud or accident, or the act of his adversary, without any negligence or fault on his own part. The object of an injunction to stay proceedings at law is to prevent the party against whom it issues from availing himself of an unfair advantage, resulting from fraud, accident, mistake, or otherwise, and which would therefore be against conscience. See Perry v. Johnston (C. C.) 95 Fed. 322.
In Marine Insurance Co. v. Hodgson, 7 Cranch, 332 (3 L. Ed. 362), Mr. Chief Justice Marshall states the rule as follows:
“Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negli*442 gence in himself or his agents, will justify an appliaction to a court of chancery.”
See, also, Hendrickson v. Hinckley, 17 How. 443 (15 L. Ed. 123) ; Brown v. County of Buena Vista, 95 U. S. 157 (24 L. Ed. 422) ; Crim v. Handley, 94 U. S. 652 (24 L. Ed. 216) ; Bryant v. Williams, 21 Iowa 329.
The party invoking the jurisdiction of equity in such a case must not only show some adequate ground of interference with the judgment, but must also disclose a meritorious and sufficient defense to the law action, or at least to some substantial part or portion thereof, in order to show that it would be against good' conscience to execute the judgment. See Sauer v. City of Kansas, 69 Mo. 46.
It appears that the county judge refused to approve the final account in the probate proceedings containing Anderson’s claim. Whatever might be the condition of this claim against the Bowsman estate, the testimony shows that the minor plaintiff, George A. Bowsman, was
The plaintiff is an infant. F. S. Slater was appointed as his guardian ad litem in the probate proceedings. Plaintiff testified that he was informed by his attorney that Slater would attend to the property, and that he would have to do what was right. In the action of ejectment, the plaintiff’s mother, Mrs. McLellan, was first appointed as guardian ad litem, for her son; but, while a summons was served upon her, she was not notified of the appointment, and made no appearance in the action. Afterwards the defendant F. S. Slater was named to serve in such capacity. Slater never consulted with plaintiff or his mother in regard to the interests of the minor, and made no defense to the action. Prior to this suit, the infant plaintiff had not “had his day in court,” to afford him a reasonable opportunity to assert his title to the land.
The probate proceedings and the administrator’s deed, referred to, are fraudulent and void as to the land of George Austin Bowsman, plaintiff, and should be .-an
The decree of the lower court will therefore be reversed, and one entered here in accordance with this opinion.
Reversed.
Rehearing
Decided August 6, 1912.
On Petition for Rehearing.
[125 Pac. 270.]
Opinion
We have carefully considered the matters discussed in the petition for rehearing, and have again gone over the testimony in the case. We still adhere to the result reached in our former opinion. It would be unjust to Mr. Slater, the guardian ad litem of George Austin Bowsman, to allow anything said in our former opinion to be construed as intimating that his course as such guardian was dictated by any sinister motive to benefit himself, or to do any injustice to the plaintiff in this suit. No one appeared in the ejectment action for plaintiff in this suit, who was a defendant in that action, and Mr. Slater was, no doubt, appointed, as guardians ad litem not infrequently are, at the request of the counsel for the plaintiff. Being a layman and a friend and acquaintance of Anderson, he no doubt accepted the representations of the parties thus interested as true, and acted upon them, and thus became the unconscious and innocent instrument through which Anderson was enabled to perpetrate a fraud upon plaintiff. That he intentionally participated in it, we do not believe.
The petition for rehearing is denied.
Reversed : Rehearing Denied.