13 Or. 220 | Or. | 1886
The respondents commenced a suit in the court below to foreclose a mortgage executed to them by Charles and Sarah F. Littlefield upon certain lots of land in Baker City, in the county of Baker. The mortgage bears date May 19, 1883, and was given to secure the payment of a promissory note executed by the mortgagors to the mortgagees for the sum of $1,625, hearing even date with the mortgage, and payable 12 months thereafter, with 10 per cent interest. Said Charles Littlefield and Sarah F. Littlefield are husband and wife, and were such when said note and mortgage were executed, and had been for a long time prior thereto. They were made defendants in the suit, and the appellants, Ottenheimer & Heilner, who are partners in business, were joined with them as defendants. The respondents set out in their complaint, after alleging a cause of suit against the makers of the note and mortgage, and that said Ottenheimer & Heilner claimed some interest in the mortgaged premises as judgment creditors subsequent and subject to the respondents’ mortgage, the following : “ And the plaintiffs herein, in order to protect and hold their security upon said mortgaged property, and that the plaintiffs may realize the full amount of their debt out of said property, the plaintiffs demand the relief hereinafter specified, which application is based upon the following facts ; ” and then proceeded to show upon what Ottenheimer & Heilner based their claim; viz.: That on the fifth day of January, 1880, the Little-fields conveyed by deed the said lots to one Shaw, and
■ I have only attempted to set out the substance of the-extra matter inserted in the complaint in order to obtain the special relief therein prayed, but have shown enough of it to show its character. It is very apparent to-my mind that it is wholly surplusage. It was unfortunate that the respondents’ attorney in draughting the-complaint conceived the idea that it would be necessary to insert such matter in the pleading, and why he did' so I am unable to understand. It could serve no earthly benefit, in any view, and he took upon himself the risk, of occasioning a jumble in the proceedings, and succeeded most admirably. It is not astonishing that such was the result. He lugged into the case an issue wholly unnecessary to the relief sought, and it could not very well fail to create confusion and entanglement. This-
The first ground was that there was a defect of parties, in that, to wit, the defendants Ottenheimer & Heilner were joined as parties with the Littlefields. The literal import of that must be that there were too few parties because there were too many — a remarkable proposition of. logic. The non-joinder of parties as plaintiff or defendant never meant the misjoinder, and the Tatter is not a cause of demurrer under our Code. When it is shown upon the face of the complaint that the presence of other parties not brought in is necessary to a complete determination of the controversy, a demurrer will lie for a defect of parties plaintiff or defendant, but not • when there are already too many brought in. The only consequence attending the latter case is that a cause of action must be shown in favor of all the plaintiffs and against all the defendants that have been joined as such; otherwise the defendant might demur, but not for a defect or misjoinder — it would be upon the ground that the facts did hot state a cause of action.
The second ground of the demurrer was that the complaint was “multifarious.” I suppose the pleader meant by this that several causes of suit had been improperly united, and why he could not have said so, and have pointed out the several causes of suit so united, is strange. The term “ multifariousness ” has not been used in our Code of Procedure for nearly twenty-five
The third ground, that the complaint did not state facts sufficient to constitute a cause of suit against Ottenheimer & ITeilner; the fourth, that the court had no jurisdiction of'the subject of the suit; and the fifth, that the complaint did not state facts sufficient to constitute a cause of suit — were proper in form, but wholly untenable.
After the demurrer was filed, the respondents’ attorney, instead of bringing it on for hearing, which is the only mode under the Code of having it disposed of, filed a motion to strike out parts of it. This was sheer absurdity. Circuit courts should promptly rebuke so flagrant an irregularity. It seems from the record that the motion was disregarded in this instance, but by consent of parties “ respectively.” If countenance is given to such anomalies, we will soon have no system whatever in our practice — it will become a mere jumble. It further appears from the record that the demurrer was heard by the court, and “ after being fully advised in the premises,” the court found that the objection to the complaint for “multifariousness” was well taken, and that upon said objection said demurrer should be sustained ; and it was thereupon ordered that the demurrer be sustained, and that the plaintiffs in the suit have leave to amend their complaint. Further on in the record it will be discovered that upon a subsequent day (the first day of November, 1884) the respondents’ attorneys filed another motion — a motion to so amend the journal entry respecting the demurrer “as that the same
“Therefore said journal entry and judgment upon said demurrer aforesaid is hereby amended to read as follows: That there be and is hereby sustained all portions of the complaint in this cause consisting of exhibit A, the title of the cause, and the following allegations contained therein, to wit.”
Then follows a form of the complaint similar to the original, after leaving out the facts relating to the special' or auxiliary relief therein sought, but which contained record copies of said deeds to Shaw;, and from Shaw and wife to Mrs. Littlefield, of January 5 and 6, 1880, which must have made twelve or fourteen pages of solid journal entry. It is hard to understand what this performance was intended for. It to my mind was, a very awkward and unwieldly affair, and extrajudicial. But it appears that subsequently, and on the seventh day of November, 1884, the said circuit court proceeded to adjudicate upon the affair, as appears from a journal entry of that date, which recites “ that the cause came on to be heard, the plaintiffs appearing by their attorneys, and the defendants Oí Lenheimer & Heilner having heretofore appeared herein by demurrer to the complaint, etc., and the judgment upon the demurrer having been duly entered, whereby a portion of the complaint was adjudged ill, and was stricken out, and the remaining portion adjudged good and sufficient, and said demurrer thereto overruled and denied, and the said defendants Ottenheimer & Heilner having failed to make any further or other defense herein, and not having asked further time in which to make such other or further defense, it appears that the plaintiffs are entitled, to the relief
Again, if there had been no attempt to patch up the first journal entry, but the respondents had filed and served a copy of an amended complaint, as the Code requires when a demurrer is sustained and the plaintiffs plead over, the Gase would have proceeded with reasonable regularity ; but that second journal entry was outlandish. The journals of a court should never be encumbered in that way; besides, it amounted to nothing. Making an entry of the part of. the complaint that the court “adjudged good and sufficient” was a work of supererogation. It could not dispense with the
The decree must be reversed ; the case remanded to the circuit court, with leave to the respondents to file an ' amended complaint; that a copy thereof duly certified be served upon the appellants’ attorneys, and that the appellants be required to answer the complaint within ■such time as the circuit court may prescribe ; that the appellants recover costs on the appeal, and that the respondents pay the fees for the entry of the said decree, and for making said second journal entry ; that the other costs and disbursements abide the final result of the suit.