MURRAY v. LAMB et al.
Supreme Court of Oregon
April 14, 1941
Rehearing Denied May 19, 1942
115 P. (2d) 336, 124 P. (2d) 531
Mоtion to dismiss appeal denied July 15, 1941; argued on the merits April 2; reversed April 14; rehearing denied May 19, 1942
H. P. Arnest, of Portland, for respondent David E. Lamb.
J. R. Murphy, of Portland, for other respondents.
KELLY, C. J. This case is before us upon motions of appearing defendants and resрondents to dismiss plaintiff‘s appeals.
The question involved being one not heretofore considered by this court, a written opinion is deemed appropriate.
This is an action based upon alleged deceit. On or about October 16, 1940, plaintiff filed her fourth amended complaint in the circuit court. On April 1, 1941, the demurrer thereto of one of the defendants, namely, D. E. Lamb, was sustained upon the ground of defect of parties defendant. On April 11, 1941, plaintiff having failed to plead further, an order of dismissal as to defendant, D. E. Lamb, was entered and a judgment for costs and disbursements in favor of said defendant, D. E. Lamb, was rendered and entered. On April 30, 1941, plaintiff filed a notice of appeal from said judgment in favоr of defendant Lamb. On said April 30, 1941, plaintiff also filed an undertaking on appeal.
On April 18, 1941, an order of dismissal was entered as to defendants, The Sanctuary of our Sorrowful Mother, аn Oregon corporation, Alexius V. Croke, Jerome DePencier, individually, and as Provincial of the Order of Servites of America, an unincorporated religious body, Petritius Broаnahan, Elton Watkins and Wallie T. Baker, and a judgment against plaintiff
On the 30th day of April, 1941, plaintiff filed a notice of appeal from the order and judgment, last above mentioned, and at said time also filed an undertaking on appeal from said last mentioned order of dismissal and judgment.
Defendants Marian Lamb and W. A. Miller were not served with summons and made no appearance in said action. An attempted service was made upon defendant, W. F. Pettibone, but such service was quashed and, except for his special appearance asking for the quashal of said attempted service, defendant Pettibone has not аppeared. No other service of summons than the attempted service mentioned has been made upon said Pettibone, and it appears by his affidavit that said Pettibone is a nonresident of Oregon. The action has been dismissed as to all defendants, except the three last named; and judgment against plaintiff has been rendered and еntered for costs and disbursements in favor of all of the defendants except said three defendants last named.
The motions to dismiss plaintiff‘s appeals are based upon the assumption that neither of the judgments mentioned is an appealable order.
The general rule is that a judgment determining the rights of some of the parties only is not final and hence not appealable. Watkins v. Mason, 11 Or. 72, 4 P. 524; Abrahamson v. Northwestern Pulp and Paper Co., 141 Or. 339, 15 P. (2d) 472, 17 P. (2d) 117; Durkheimer Investment Co. v. Zell et al., 161 Or. 434, 90 P. (2d) 213.
This general rule is subject to the qualification that if the judgment “disposes of the case as to all
For these reasons, the appeal from the order of April 11, 1941, is dismissed; and the motions to dismiss plaintiff‘s appeal from the judgment and order of April 18, 1941, are denied and overruled.
ON THE MERITS
(124 P. (2d) 531)
RAND, J. In October, 1940, an order granting leave to plaintiff to file a fourth amended complaint was made and entеred in this action. David E. Lamb, one of the defendants, separately demurred to the complaint upon the ground (1) that there is a defect of parties defendant in that one A. M. Mayer had not been joined as defendant in the action, and (2) that the action had not been commenced within the time limited by law. The court sustained the demurrer upon the first grоund and, upon plaintiff‘s refusal to plead further, dismissed the action as to Lamb.
Prior to the sustaining of the demurrer, all the other defendants, except four, had filed a joint answer in which they admitted the corporate existence of one of the defendants and denied generally all the other allegations of the complaint. Of these four, three had not been served and the service as to the other one had been quashed. After the separate demurrer of Lamb had been sustained, the answering defendants
This action was brought to recover damages alleged to have been sustained by plaintiff from certain false and fraudulent representations alleged to have been made to her by defendants jointly and hence, if the fourth amended complaint was sufficient to state a cause of action, the action was a tort action in which the plaintiff was entitled to sue any one or more of the defendants causing the injury complained of. That being so, there could be no defect of parties defendant in an action brought against one or more of such joint tortfeasors. Moreover, had a defect of parties defendant appeared upon the face of the complaint, as the answering defendants contend, then, in failing to demur to the complaint upon that ground, the defect would have been waived under
The fourth amеnded complaint, however, is defectively drawn as to be almost unintelligible and it is extremely doubtful whether it states facts sufficient to constitute a cause of action. That quеstion, however,
Our statute—
” * * * one of the first principles of pleading, that thеre is only occasion to state facts, which must be done for the purpose of informing the court, whose duty it is to declare the law arising upon those facts, and of aрprising the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it.”
It is always necessary to any regular administration of law that the plaintiff shall make a clear, distinct and intelligible statement of his claim in order that the defendant may know what he has to meet. The plaintiff‘s fourth amended complaint fails to comply with the directions contained in this statute or with the rules above stated. Had this complaint been demurred to or moved against upon proper grоunds and not, as was done, on the ground of a defect of parties defendant, we would be compelled to affirm the action taken by the trial court but, since this was not donе, it leaves nothing for this court to do except to reverse the orders appealed from. We do hold, however, that, if this case is to be tried, this complaint is not sufficient to inform the trial court of the facts upon which
The orders appealed from will, therefore, be reversed and the cause will be remanded for such further proceedings as are not inconsistent herewith.
Reversed and remanded.