Kosher v. Stuart

121 P. 901 | Or. | 1913

Lead Opinion

Opinion by

Me. Chief Justice Eakin.

1. This is a motion to dismiss the appeal for the reason that there is no order or judgment from which an appeal will lie under Section 549, L. O. L., which provides that any party to a judgment other than one given by confession or for want of an answer may appeal therefrom. The judgment appealed from is in form a judgment by default, but the defendants made some effort to appear and answer. The trial court adjudged them in default, and the appeal is for the purpose of reviewing the proceedings to determine whether or not they were in default. Therefore we cannot determine that there was no answer, and dismiss the appeal without reviewing the record and determining the merits of the appeal, and under such circumstances the motion must be denied. Sears v. Dunbar, 50 Or. 36 (91 Pac. 145); Grover v. Hawthorne, 62 Or. 65 (116 Pac. 100). Denied.

(129 Pac. 491.) For appellants there was a brief and an oral argument by Mr. Hayward H. Riddell.

---

Opinion on the Merits

Argued January 21, decided January 28, 1913.

On the Merits.

Statement by

Mr. Chief Justice McBride.

This was an action to recover upon a promissory note. The complaint was served upon the defendants, A. Winans and Mattie A. Winans, on May 23, 1911, in Multnomah County. On June 2nd the defendants obtained an extension of five days’ time in which to plead. On June 15th, the time so granted having expired and no pleading having been filed, plaintiff’s attorney moved for a default judgment, and defendants moved for further time in which to plead. The court, over plaintiff’s objection, extended the time to June 19th. Within this time the answer was filed, but was not served upon plaintiff’s attorney before filing, as required by a standing rule of the circuit court. The plaintiff moved to strike the answer from the files, which was allowed. Thereupon the court made an order permitting defendants to answer on condition that they file a bond conditioned to pay any judgment plaintiff might recover, and, upon their refusal to comply with this order, gave judgment for want of an answer, and defendants appeal. Affirmed.

For respondent there was a brief and an oral argument by Mr. Loyal H. McCarthy.

Opinion by

Mr. Chief Justice McBride.

2. The circuit court has authority to make reasonable rules governing procedure. Section 913, subd. 5, L. O. L. The rule requiring service of a pleading before filing the same is not unreasonable, but a proper and salutary regulation; and the court was justified in striking from its records a pleading filed in defiance of its rules.

3. The defendants being in default, the court, under Section 103, L. O. L., was authorized to impose such terms as might be just as a condition precedent to defendants’ being permitted to answer. Under the circumstances disclosed here, it was not unreasonable to require defendants to give a bond conditioned to pay any judgment that might be recovered by plaintiff. The answer tendered could easily have been prepared in an hour, and no reasonable excuse is shown for the delay of several weeks in its preparation and service.

The judgment is affirmed. Affirmed.