Delay v. Chapman

2 Or. 242 | Or. | 1867

Boise, C. J.

The alleged amendment to section 93 of the Code simply provides that when, in any stage of the pleadings in the case, the facts show, that, to determine the rights of the parties, the interposition of a court of equity is required, the case shall proceed as a suit in equity, without requiring the party to resort to his suit in equity in a formal manner.

It will allow equitable titles to be set up against legal titles in the same action. There can be no doubt as to the meaning of the amendment. The plaintiffs insist that this amendment is void because it was passed by the legislature in violation of section 22 of article 4 of the State Constitution, which provides : “ No act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length.” The section is set forth at full length as amended. It does not revise any act of the legislature, but simply introduces a new feature» into the practice, without abolishing any remedy that existed before. Without this provision, a defendant in ejectment, who had the equitable title, in order to avail himself of it, would have to resort to his suit in equity, and seek to enjoin the plaintiff from proceeding with his action at law until the equitable suit of the defendant could be determined. This statute is intended to allow him to interpose his equitable title by answer. Though this amendment to section 93 virtually unites actions at law, and suits in the same case, it does not violate section 22, article 4 of the Constitution,, or any other constitutional provision.

It is an effort by the legislature to simplify judicial proceedings, and the law making power has the right to make the effort; and it is the province of the court to execute their enactments in good faith, though they may encroach on the forms of established practice.

It is claimed that the amendment is a repeal of section 329 of the Code • and that if it does so operate, it is a violation of section 22, article 14 of the Constitution.

We think this conclusion does not follow, for, if it be a repeal of section 329, it repeals it by implication, and it is neither a revision or amendment of it. Neither is it a revision of chapter 5 of the Code; for the remedy there provided still remains in full force, and can be resorted to as formerly at the option of the party who seeks to avail himself of an equitable defense.

We think, therefore, that this answer can be interposed in that form used in the pleadings, and therefore judgment below is affirmed.