122 P. 40 | Or. | 1912
delivered the opinion of the court.
“Your letter of July 31st is acknowledged. Myself and my client will be willing to have the case tried at Grants Pass. You may draw the stipulation for a change of venue to that effect. Inasmuch as we have a term beginning in September, might I ask that you put the hearing of this case as late as possible -in your September term of court. Let me know as near as you can judge approximately when it can be heard so that I can arrange my affairs to be present. I remain, Very truly yours,
John F. Logan.”
While this “gentleman’s agreement” was in this uncompleted state, awaiting the drawing and execution of the stipulation, the. defendants’ attorney was called away from his home in Portland to Seaside on account of what is termed in the record “impending illness” in his family, and was absent from his office. This absence and its moving cause was unknown to the opposing counsel, but on August 6, 1909, the latter addressed to defendants’ attorney this letter:
“Dear Sir and Friend: My Client, Mr. Higgins, was in to see me yesterday and he insists on trying the case in open court at Gold Beach. I hoped I could persuade him to try it here, but his desire is that it be tried at Gold Beach, and he gave me very good reasons for doing so. I will therefore be at Gold Beach on the 23rd of this month, which is the first day of the term, to take up this case as soon as possible thereafter. Enclosed you will find copy of reply which I have caused to be filed. Very truly, Robert G. Smith.”
This letter was addressed to defendants’ counsel at Portland where he resides, but, on account of his absence from home, it did not reach him until about August 14, 1909. On the 17th of that month he telegraphed plaintiffs’ counsel substantially that he had relied upon the correspondence agreement to try the case at Grants Pass in September, ' and that sickness and important
There is but one term of court held annually in Curry County, and that on the fourth Monday in August. The motion to open the decree, and the áffidavits in support thereof were filed August 8, 1910, and there were no opposing affidavits. The defendants join in an affidavit setting forth in detail the correspondence between respective counsel, and that, being informed of the same, they themselves had abandoned the idea of going to Curry County to attend the trial, had made other arrangements, and gone off on their vacation out of reach of their attorneys, and hence were unprepared. They also set forth, not only in their own affidavits, but in the affidavits of some witnesses, very material matters which would be proper in evidence in their behalf on the issues raised by the pleadings. Section 108, L. O. L., says:
“The court may likewise, in its discretion and upon such terms as may be just, allow an answer or reply to be made or other act to be done after the time limited by this code or by an order enlarge such time and may also in its discretion and upon such terms as may be just, at any time within one year after notice thereof, rélieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.”
Here is a situation in which either attorney, as affected by his viewpoint, was authorized to act as he did. Counsel for plaintiffs might well have considered that the negotiations were yet open, awaiting the draft of a stipulation for a change of venue, as stated in the letter from defendants’ counsel under date of August 2, 1909. It was
But this is not a case between the attorneys, neither of whom is really culpable in the matter. The just rights of the parties must be conserved. In such cases the law is more tender respecting the defendants because they are not the moving parties. Moreover, the inadvertence, surprise, or excusable neglect of the losing party, the defendants in this instance, are what the court must consider rather than what was apparently justifiable conduct on the part of the plaintiffs. We cannot balance one