767 P.2d 487 | Or. Ct. App. | 1989
Defendants
In 1985, plaintiff filed the action. In January, 1986, he filed an amended complaint. Defendants moved to strike the fourth and fifth claims. ORCP 21. The court denied that motion.
Defendants did not plead further within 15 days. On September 9, 1986, plaintiffs attorney mailed to the trial judge a proposed order of default, together with a motion and supporting affidavit, and also a notice of intent to take a judgment by default. Defendants had not yet pleaded again. In a cover letter, plaintiffs attorney stated:
“I would appreciate your clerk setting a time for the taking of the default judgment on the 22nd of September, 1986. I believe that it will only take ten minutes to present evidence concerning the presentation of a prima facie case.”
Without obtaining permission of the court, see ORCP 15B(2) and 15D, defendants served plaintiff with an amended
The order of July 18, 1986, on plaintiffs motion only granted relief as to the counterclaims in the answer. Their general denial remained as pleaded. See Ind. Leasing v. Roberts Myrtlewood, 237 Or 376, 378, 391 P2d 744 (1964); Heider v. Bernier, 179 Or 516, 521, 173 P2d 302 (1946). Accordingly, the record did not justify the court’s determination that defendants were in default. See Morrow Co. Sch. Dist. v. Oreg. Land and Water Co., 78 Or App 296, 302, 716 P2d 766 (1986).
Reversed and remanded with instructions to vacate the judgment and order of default; appeal dismissed as to King.
“Defendants” are appellants Vera Davis Michel, personal representative of the estate of Raymond S. Michel, Vera D. Michel, Richard D. Turner, Marine Recovery Company, United Holding Co., and Michel Holding Co. The record contains a judgment against them that meets the requirements of ORCP 67B.
Defendants’ notice of appeal names Leo King as an adverse party. The judgment from which they appeal, however, is not in favor of or against King and the assignments of error have nothing to do with King. Accordingly, the appeal as to King should be dismissed.
Defendants also assign as error that the court denied the motion to strike. We do not address the assignment, because defendants do not make any argument in support of the assignment.