Finney v. Egan

72 P. 136 | Or. | 1903

Mr. Chief Justice Moore,

after stating the facts in the foregoing terms, delivered the opinion of the court.

It is contended by defendant’s counsel that by the interposition of the cross-bill the court secured jurisdiction of the subject-matter, and, having determined the controversy in the suit in favor of the plaintiff, had authority to determine what damages, if any, he sustained, and, not having done so, an error was committed by the court in permitting plaintiff to resume the prosecution of the action at law after the decree was rendered. The statute authorizing the procedure adopted to stay the trial of this action is, as far as deemed material, as follows: “ In an action at law, where the defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material for his defense, he may, upon filing his answer therein, also as plaintiff, file a complaint in equity, in the nature of a cross-bill, which shall stay the proceedings at law, and the case thereafter shall proceed as in a suit in equity, in which said proceedings may be perpetually enjoined by final decree, or allowed to proceed in accordance with such final decree”: B. & C. Comp. § 391. The final decree did not enjoin further proceedings in the action at law, nor did it, in express terms, allow the action to proceed in accordance therewith. The damage Finney sustained by Egan’s alleged removal of the fence, and the injury to the grain growing on the disputed premises was not in issue in the suit in equity, and hence no decree could have been rendered therein in relation to such damage, except to allow the action at law for the recovery thereof to be prosecuted for that purpose. The decree having been in Finney’s favor, the failure to enjoin further prosecution of the action at law was, in our opinion, tantamount to an authorization to proceed to final determination therein for the recovery of damages for the injury sustained. Though the prosecution of the action at law was stayed by the filing of the cross-bill, the court, in exercising its equitable jurisdiction, did not, under our system of procedure, thereby secure jurisdiction of the action, which remained in abeyance until the final decree was rendered : Hill v. Cooper, 6 Or. 181; Oatman v. Epps, 15 Or. 437 (15 Pac. 709). When the suit was terminated without any restriction in the final decree, the suspension of the action at law was necessarily ended, thus allowing the trial of the action to proceed to final determination of the remaining questions involved therein.

Believing that the court was authorized to try such issue, its judgment thereon is affirmed. Affirmed.