Paabo v. Hanson

162 P. 256 | Or. | 1917

Mr. Justice McCamant

delivered the opinion of the court.

1. It is provided by Section 2804, Lord’s Oregon Laws, as amended in 1911, that there shall be two terms of the Circuit Court held in Lincoln County each year, and that one of them shall be held on the first Monday in August. In the year 1915, this day fell on the 2d of August. Counsel for appellant was chargeable with notice of this legislation. The fact that the Circuit Court of Multnomah County was not in session at this time did not justify him in assuming that this case would not be heard in Lincoln County at the August term provided for by law.

2. On the other hand, this case bears the earmarks of an attempt on the part of respondent to take improper advantage of appellant by forcing the case on for trial at a time when he knew appellant could not be present, and when it was impossible for appellant to secure the attendance of his witnesses. It seems that these parties are neighbors, residing in Rose Lodge Precinct in Lincoln County. The neighborhood is remote from any railroad, and inaccessible from the county seat. It appears by the uncontroverted showing made by appellant that he left his home on or before the first day of February, 1915, and from and after that date was continuously employed as night, watchman in the Oregon Building at the San Francisco fair, and that these facts were well known to respondent. Respondent withheld the filing of his reply until the thirty-first day of July, which was the last business day before the opening of the August term of court. On the thirtieth day of July respondent began to press the case for trial. Even if Mr. Joy had been in his office and had promptly telegraphed to appellant on receipt of word from the clerk of the court, appellant could barely have reached Toledo in time for the trial, and could not possibly have made the necessary preparation properly to present his case. His witnesses were scattered over Lincoln County, and the inaccessibility of the place where the controversy arose makes plausible the statement in the affidavit of Mr. Joy that appellant would have required a week or ten days to subpoena the witnesses and secure their presence at the trial. Under the circumstances of this case it would have been only a proper courtesy on the part of respondent to have notified appellant, two weeks or more before the beginning of the August term of court, of his intention to press the case on for trial. Such notification was not given. No attention was paid to the request transmitted by Mr. Joy’s stenographer that the case might be held in abeyance until Mr. Joy’s return to Portland. Respondent must have known that appellant desired to defend the case. Under these circumstances, wo do not think that respondent should be permitted to collect this judgment, based on the verdict of a jury returned after a trial, in which appellant was not heard, either in person or by attorney. We are the more ready to grant relief, because appellant was defendant in the lower court: Higgins v. Seaman, 61 Or. 240, 244 (122 Pac. 40).

The case seems to us to fall within the purview of Section 103, L. O. L., which provides that the court “may, * * in its discretion, and upon such terms as may be just at any time within one year after notice thereof, relieve a party from a judgment * taken against him through * * mistake, inadvertence, surprise, or excusable neglect.”

In his application for relief from the judgment, appellant offers to submit to such terms as the court may impose. We think that terms should be imposed, for appellant’s counsel was certainly at fault. The order will therefore be that the judgment be reversed, provided that appellant deposits with the clerk of this eourt, within 30 days, the costs and disbursements of respondent in the Circuit Court and in this court; in default of such deposit, judgment to be affirmed.

We have examined all the authorities to which our attention has been directed by the parties, but it would serve no good purpose to review them. We think that the conclusions reached are supported by the doctrine of the following cases: Higgins v. Seaman, 61 Or. 240 (122 Pac. 40); Anderson v. Scotland (C. C.), 17 Fed. 667; Virginia Co. v. Harris, 151 Fed. 428 (80 C. C. A. 658).

It is proper to add that by this opinion we make no reflection on the counsel who appears for respondent on the presentation of this appeal. The record shows tliat respondent lias retained three sets of attorneys in the course of the litigation. Reversed.

(Note. — Within the 30 days appellant complied with the terms imposed by the court. — Reporter.) Mr. Chief Justice McBride, Mr.' Justice Burnett and Mr. Justice Harris concur.