209 P. 483 | Or. | 1922
After stating the corporate entity of the defendant, the complaint proceeds as follows :
“2. That heretofore and between the 8th day of August, 1920, and the 27th day of August, 1920, the said plaintiff sold and delivered to the above-named defendant, Oregon Scenic Trips Co., certain goods, wares and merchandise, consisting of automobile tires and accessories of various descriptions, and performed certain services in and about the hereinafter described automobile, all at the agreed and reasonable price of $478.14.
‘ ‘3. That the said tires, tubes and automobile accessories so sold and delivered to the said defendant, Oregon Scenic Trips Co., by said plaintiff, was so sold and so furnished the said defendant to be used, and which to plaintiff’s information and belief were used, on that certain United States automobile truck, bearing Oregon license for the year 1920 number 80087, and bearing motor number 3781-20, and that said services so rendered by said plaintiff for said last above mentioned defendant were performed and rendered in and about said last described automobile truck. That no part of the said $478.14 has been paid and that there is now due and owing to this plaintiff from said last named defendant the said sum of $478.14.
“i. That said defendant, Oregon Scenic Trips Co., was on the dates heretofore mentioned the owner or reputed owner of the said above described automobile truck, and that at the time said merchandise was so sold and said services so performed the said last named defendant was in possession and control of said last described automobile truck.
‘ ‘ 5. That the above named plaintiff duly filed as required by law, his claim, for lien for the amount due and owing him as aforesaid by said defendant in the office of the county clerk in the county of Clatsop, state of Oregon, on the 6th day of October, 1920, and within sixty days from the date of the sale and furnishing and delivering of said automobile tires and
“6. That there is now due and owing said plaintiff for said automobile tires, tubes and accessories so sold and delivered the said defendant, Oregon Scenic Trips Go., and for said services performed, the said sum of $478.14, and that said last named defendant has refused to pay the same, and said plaintiff has a good and valid claim for lien upon the above described automobile truck.”
The pleading closes with the general assertion that the defendants Henry and Eose have some claim against the automobile in question in the 'nature of a chattel mortgage and that $100 is a reasonable amount to be allowed the plaintiff for attorney’s fees in the foreclosure of the lien. Another count as to another automobile is inserted in the complaint in identical terms except as to amount and description.
The defendant demurred to the complaint on the following grounds:
“That the court has no jurisdiction of the person of these defendants, or either of them, or of the subject of the action.
“That the complaint does not state facts sufficient to constitute a cause of action.”
On appeal the defendant urges the following errors:
“That the court erred in overruling defendants’ demurrer to plaintiff’s complaint.
“That the court erred in entering its judgment and decree against defendant Oregon Scenic Trips Co. on said complaint, for the reason that said complaint does not state facts sufficient tó constitute a cause of suit against said defendant.”
. The court, therefore, was without authority to impose a lien upon the property or to direct a foreclosure thereof. The utmost that it could do was to overrule the demurrer, treat the complaint as con-
Formerly, as stated in Ming Yue v. Coos Bay R. R. Co., 24 Or. 392 (33 Pac. 641), it was the rule that “under the provisions of the Oregon law retaining the distinction between suits in equity and actions at law, though abolishing the difference in -the forms, a complaint for the foreclosure of a mechanics’ lien, which does not state a cause of suit, cannot be retained and treated as an action at law to recover money.” We have seen that there is enough in the plaintiff’s initial pleading to support a judgment at law, but not enough, however, to serve as a foundation for a decree in equity. We cannot turn him out of a court of law, for the reason that he has stated a cause of action at law. The aspect of his case contemplating equitable relief can well be ignored as surplusage, because of insufficiency of his complaint for that purpose. Moreover, since the decision of the Ming Yue case, Section 390, Or. L., has been amended and now contains this provision:
“No cause shall be dismissed for having been brought on the wrong side of the court. The plaintiff shall have a right to amend his pleadings to obviate any objection on that account.”
The plaintiff is not complaining of the result, nor has he applied to amend .his pleading.
As to the defendant, the record shows that it treated the case as an action at law by saying to the trial court in its demurrer., “The complaint does not state facts sufficient to constitute a cause of action.” It stood upon the issue thus tendered, although it would not have waived its contention on the demurrer by answering over. To send the case bach for further proceedings would be a disposition of it for
The court was right in its ruling upon the demurrer and wrong in its final deliverance to the extent of its attempt to foreclose a lien, and hence the final order of the Circuit Court ought to be modified so as to allow the plaintiff to recover the face of his claim, as in an action at law, but without attorney’s fees.
In accordance with the view of the majority, the final order of the Circuit Court from which the appeal was taken is reversed and the cause is remanded for further proceedings. Reversed and Remanded.