Freeman v. Preston

89 P. 375 | Or. | 1907

Mr. Justice Moore

delivered the opinion of the court.

1. The abstract upon which the cause was tried in this court in lieu of a transcript sets out what purports to be a copy of an amended answer that shows it was filed on the day of the trial and states on the face of the pleading that it was done “by leave of court first had and obtained/’ etc. This answer denies each allegation of the complaint, and interposes thereto five separate defenses. No reply to such averments of new matter appears to have been filed, and the court in its findings ignored the amended answer. The plaintiff’s counsel asserts in his brief that the separate defenses were disregarded, because it did not appear that leave was given to file the amended answer. The court certifies in the bill of exceptions that the parties introduced evidence at the trial tending to maintain the allegations of their pleadings and to support the respective issues made thereby. This declaration is compatible with the idea that the cause was tried on the issue made by the original answer, which, it is assumed, only denied the allegations of the complaint. Invoking the disputable presumption that official duty has been regularly performed (B. & C. Comp. § 788, subd. li>), we must conclude, from the findings of fact, that no permission was granted to file the amended answer.

2. Though the plaintiff’s counsel, if he had considered the abstract filed herein incomplete, might have furnished such further or additional abridgement of the record of the cause as he deemed necessary to a full understanding of the questions involved on the appeal (Buie No. 5 of the'Supreme Court, 35 Or. 587, 592), he could not have been expected to prove a negative; and as no reply to the amended answer appears in the abstract whereby permission to file the latter pleading was waived, and as such answer could not have been interposed without the court’s consent, the necessity of setting out an order to that effect devolved on the defendant’s counsel, and, failing in this respect, we believe no error was committed in making the findings of which they complain.

It follows, from these considerations, that the judgment should be affirmed, and it is so ordered. Affirmed.