Brownell v. Salem Flouring Mills Co.

87 P. 770 | Or. | 1906

Mr. Justice Moore

delivered the opinion of the court.

1. This is a motion to dismiss an appeal on the ground that the judgment sought to be reviewed was given for want of an answer. A motion to strike out parts of the complaint was denied, and, the defendant declining further to plead, judgment was rendered against it for the sum demanded, from which an appeal was attempted to be taken. The statute, prescribing an appealable decision of a court, contains the following provision:

“Any party to a judgment or decree other than a judgment or decree given by confession, or for want of an answer,' may appeal therefrom:” B. & C. Comp. § 548.

Any pleading on the part of the defendant that interposes an issue of fact or of law is, in a general sense, denominated an “answer,” and, under this very liberal definition, the formal mode of disputing the sufficiency of the plaintiffs primary pleading comes within the meaning of this term: Boone, Code PL § 58. Thus, when a demurrer to a complaint is overruled, and, the defendant refusing further to plead, a judgment or a decree is rendered against him, he may appeal therefrom on the ground that the issue of law thus tendered constitutes an answer: Kearns v. Follansby, 15 Or. 596 (16 Pac. 478); Hendy Machine Works v. Portland Sav. Bank, 24 Or. 60 (32 Pac. 1036); Willis v. Marks, 29 Or. 493 (45 Pac. 293). An application for an order is a motion: B. & C. Comp. § 534. Its purpose, when a defect in a pleading exists, is particularly to point out some alleged irrelevant or redundant matter therein which may be stricken out: B. & C. Comp. § 86. “There can be no doubt,” says Mr. Chief Justice Lord, in The Victorian, 24 Or. 121 (32 Pac. 1040, 41 Am. St. Rep. 838), “that the object of a motion to strike out is not to perform the office of a demurrer.” The sufficiency of a pleading, as to matters of substance, must be tried on a demurrer, but, when the manner of stating the facts is defective for noncompliance with the rules of pleading, the remedy for its correction is by motion: 14 Enc. Pl. & Pr. 91. A motion calling attention to a defective statement in a pleading does not present an issue of fact or of law, and hence cannot, under the most liberal rule, be classed as an “answer.”

2. It must be admitted, as was argued by defendant’s counsel, that, if a motion to strike out irrelevant or redundant matter from a complaint be denied and such matter is controverted in the answer, the issue thus made is immaterial. An error committed in overruling a motion to strike out can be corrected, however, by objecting and excepting to the admission of evidence tending to establish such issue, and also requesting an instruction not to consider such evidence, which, if denied, the action of the court in this respect will be reviewed on appeal: Krewson v. Purdom, 11 Or. 266 (3 Pac. 822); Thomas v. Herrall, 18 Or. 546 (23 Pac. 497).

It follows fiom these considerations that the appeal must be dismissed, and it is so ordered. Appeal Dismissed.