119 P. 348 | Or. | 1912
Lead Opinion
Decided December 12, 1911.
On Motion to Dismiss.
(119 Pac. 348.)
delivered the opinion of the court.
This is a motion to dismiss an appeal and to strike an abstract from the files. It is contended that the notice of appeal is insufficient to confer jurisdiction. Omitting the formal parts, the paper adopted to secure a transfer of the cause is as follows:
“Notice is hereby given that the plaintiff, Lois 0. Mac-Mahon, appeals to the Supreme Court of the State of Oregon from the whole of the judgment and order entered in the above-entitled court and cause on April*136 28, 1911, and appearing on the journal of said court at page 183 of Journal Number 5 thereof.”
It will be seen that neither the party who secured the judgment nor the one against whom it was rendered is specified in the notice of appeal.
“Whereas Lois 0. MacMahon, the plaintiff in the above-entitled action, appeals to the Supreme Court of the State of Oregon from the whole of the judgment and order made against her in the said action in the said circuit court in favor of the defendant in said action on the 28th day of April, 1911.”
It is contended that the abstract that was filed is false in some particulars. Respondent’s counsel evidently considering such abridgment unfair filed an additional abstract as authorized by rule 7 of the Supreme Court. (56 Or. 616: 117 Pac. x).
The motion should be denied, and it is so ordered.
Motion to Dismiss Denied.
Decided June 18, 1912.
Motion to Dismiss.
(124 Pac. 474.)
delivered the opinion of the court.
This is a motion to dismiss an appeal. This action was instituted to recover the possession of the southeast quarter of section 15 in township 2 south of range 9 west of the Willamette meridian; the complaint being in the usual form. The answer denies most of the averments of the complaint and for a separate defense alleges:
“That defendant is in actual possession of the land described in plaintiff's complaint only as tenant of Agnes Reid, of the City of Portland, Multnomah County, Oregon, under a.lease dated February 28, 1907.”
For a further answer it is averred that Agnes Reid’s title to the premises depended upon a tax deed, setting forth the procedure whereby the conveyance was executed. A reply put in issue the allegations of new matter in the answer, whereupon the cause was tried, resulting in a judgment for defendant, and the plaintiff appealed.
Thereafter, as appears from a supplemental affidavit of defendant’s counsel, the plaintiff herein commenced a suit against Agnes Reid and Francis Trever, Jr., to determine an adverse .claim to the real property hereinbefore described. Agnes Reid, alone appearing, denied the allegations of the complaint and alleged her ownership of the land in question. The averments of new matter in the answer having been denied in the reply, the cause was tried, resulting in a decree, November 17, 1911,
“A defendant who is in actual possession may, for answer, plead that he is in possession only as tenant of another, naming him and his place of residence, and thereupon the landlord, if he apply therefor, shall be made defendant in place of the defendant, and the action shall proceed in all respects as if originally commenced against him. If the landlord does not apply to be made defendant within the day, the tenant is allowed to answer, thereafter he shall • not be allowed to, but he shall be made defendant if the plaintiff require it. If the landlord be made defendant on motion of the plaintiff, he shall be required to appear and answer within ten days from notice of the pendency of the action and the order making him defendant, or such further notice as the court or judge thereof may prescribe.” Section 326, L. O. L.
The answer in the ejectment action does not name the place of Agnes Reid’s “residence,” unless it can be inferred that her domicile or abode was in Portland. It does not appear, however, that she applied to be made defendant in that action, or that the plaintiff required that she should be made a party, or that any order was given making her a defendant. The rule adopted in
Opinion on the Merits
Decided August 13, 1912.
Rehearing denied October 15, 1912.
On the Merits.
(126 Pac. 3.)
delivered the opinion of the court.
The court was entirely without jurisdiction, after the previous term had expired without any motion for that purpose having been filed by defendant, to vacate or annul the previous order and judgment given by Judge Burnett. Deering & Co. v. Quivey, 26 Or. 556 (38 Pac. 710); Brand v. Baker, 42 Or. 426 (71 Pac. 320). If the order of Judge Burnett, granting a new trial, was erroneous, defendant’s remedy was by appeal. We cannot review it in this proceeding, holding, as we do, that the court possessed jurisdiction to make it.
It follows from the foregoing that the judgment appealed from is reversed and set aside, and the order of November 14, 1910, and the judgment of November 17th are adjudged to be in full force and effect.
Reversed: Rehearing Denied.