Nye v. Bill Nye Milling Co.

80 P. 94 | Or. | 1905

Mr. Justice M-oore

delivered the opinion of the court.

1. It is contended by defendant’s counsel that, the judgment given at the first trial having been reversed by reason of the insufficiency of the complaint (42 Or. 560, 71 Fac. 1043), the court erred in permitting that pleading to be amended, without requiring plaintiff to pay the costs and disbursements incurred by the defendant at such trial in the circuit and supreme courts. The costs and disbursements of the former trial, for the payment of which the defendant was liable, became, on a reversal of the judgment, a valid charge against plaintiff, which he should reimburse: B. & C. Comp. § 563. These, charges being an obligation which the law imposes on the defeated party to an action, was the refusal of the trial court to prescribe the payment thereof, as a condition precedent to the filing of an' amended complaint, such an abuse of discretion as to cause a reversal of the judgment? The court may at any time before trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading to be amended by adding an allegation material to the cause: B. & C. Comp. § 102. Though the legal propositions which have arisen and been decided on a former appeal became the law of the case, so far as applicable to the facts developed on a subsequent trial (Powell v. Dayton, S. & G. R. R. Co. 14 Or. 22, 12.Pac. 83), a judgment reversed is regarded as if it had never existed, and the parties are restored to 'their rights as they were before it was rendered: Williams v. Simmons, 22 Ala. 425. Therefore, in the case at bar, when the judgment given at the former trial was reversed, and the mandate of this court entered in the journal of the court below, the cause stood as though no trial had ever been had, thereby authorizing the circuit court to allow the complaint to be amended, in furtherance of justice, and upon such terms as to it might have seemed proper: Lieuallen v. Mosgrove, 37 Or. 446 (61 Pac. 1022). The granting or the refusal of leave to amend a pleading is a matter resting in the sound discretion of the trial court, which will not be disturbed except for an abuse thereof: Green v. Iredell, 31 S. C. 588 (10 S. E. 545). In Gallagher v. Dunlap, 2 Nev. 326, a judgment, having been rendered against the defendant on the pleadings, was reversed, with leave, granted by the supreme court, to amend the answer. In a petition for a rehearing it was insisted that the defendant should be required to pay the costs of the appeal as a condition precedent to his being permitted to amend the answer. Mr. Justice Beatty, replying to the question thus presented, says: “We see no reason for such a course. There is nothing in the ease to show us that defendant is making a sham defense. Eor aught we know, his defense máy be a perfectly good one. We are not disposed to deprive, him of the opportunity of making his defense because, perchance, he may not have the ready money to pay the costs of the appeal.” The transcript in the case at bar fails to disclose any fact from which an abuse of discretion can be inferred, and no error was committed in denying the motion to impose terms as a condition precedent to the right to file an amended complaint.

2. It is insisted by defendant’s counsel that after the former judgment was reversed, as no new answer was filed, the original answer, so far as it put in issue the allegations of the amended complaint, constituted a defense thereto, which entitled defendant to a trial on the merits, and, this being so, the court erred in rendering judgment against it as for want of an answer. It will be remembered that the court, on December 19, 1903, having denied the motion to require, plaintiff to pay the costs and disbursements of the former trial, allowed defendant two days in which to plead to the amended complaint, whereupon its counsel asked for and was granted leave until January 2, 1904, to file an answer. This application to replead constituted an election to abandon the answer (Slemmons v. Thompson, 23 Or. 215, 31 Pac. 514), though it may then have been on file: 6 Enc. Pl. & Pr. 88; Seawell v. Crawford (C. C.), 55 Fed. 729; Robinson v. Keys, 9 Humph. 144.

3. It is maintained by defendant’s counsel that the judgment complained of was rendered against the defendant through its mistake, inadvertence, surprise, and excusable neglect, and hence the court erred in refusing to set aside its decision, and to permit the answer tendered to be filed. The court, on December 19, 1903, extended the time to January 2, 1904, in which to file an answer to the amended complaint. No effort appears to have been made to comply with the terms of this order until January 4, 1904, when defendant’s counsel applied for a further extension of time to file an answer, without attempting, in any manner, to excuse their default. There being no answer to the amended complaint, judgment, for want thereof, was rendered against the defendant on the day the last application for an extension was made. The motions for extensions in which to file an answer, made December 19, 1903, and January 4, 1904, state that, for a defense to the amended complaint, defendant’s counsel desire to plead a counterclaim, but that the facts necessary to constitute such set-off were known only to the defendant’s general manager, whose absence, in consequence of his mother’s illness and death, precluded the preparation of the intended defense. A motion to set aside a judgment is addressed to the sound discretion of the trial court (B. & C. Comp. § 103), and its action, whether in vacating a judgment or in refusing to ■ set it aside, will not be disturbed except in cases of apparent abuse of the power which it possesses in this particular: Thompson v. Connell 31 Or. 231, 232 (48 Pac. 467, 65 Am. St. Rep. 818); Hanthorn v. Oliver, 32 Or. 57, 62 (51 Pac. 440, 67 Am. St. Rep. 518); Coos Bay Nav. Co. v. Endicott, 34 Or. 573 (57 Pac. 61).

4. No undue advantage should ever be taken of a party who, or whose chief witness, has necessarily been called away from the place of trial by reason of the serious illness or death of a member of his family, and if, in consequence of his absence to minister to the relief of a dangerously ill intimate relative, or to pay the last sad tribute of respect to one who in life was dear to him, a judgment has been rendered against such party, it ought to be set aside, if application therefor be made within the time, prescribed, unless his presence or that of his principal witness at the trial, or in making preparation therefor, was unnecessary. An examination of the answer tendered, and a consideration of the affidavits offered in support of and opposed to the motion to vacate the judgment, induce the conclusion that the presence of the defendant’s general manager was not necessary to a preparation of the answer sought to be interposed, and that no abuse of discretion is disclosed by the court’s refusal to set aside the judgment. The defendant had at its command sufficient means of securing the desired information, and ample opportunity to prepare and file its answer at any time prior to January 2, 1902, but, instead of doing so, its counsel did not even ask for an extension of time until two days thereafter, when a default had' already occurred.

It follows that the judgment should be affirmed, and it is so ordered. Affirmed.