Smith v. Wilkins, 51 P. 433

Smith v. Wilkins

51 P. 433 | Or. | 1897

Per Curiam.

Upon the former hearing the decree of the court below was affirmed on the ground that Beach’s answer was insufficient (48 Pac. 708), but it now appears that all the record was not before the court at the time. A portion of it had been misplaced, and did not get into the judgment roll, and, as the attorney who took and prosecuted this appeal *422did not try the case in the court below, he was not aware of and did not discover the defect, nor was the misplaced portion of the record found, until after the former decision. Application was made for a rehearing and for a rule on the court below to complete the record. From the record, as we now have it, it appears that, in addition to his complaint in the suit brought to foreclose his lien, and which was, by stipulation of the parties, consolidated with the Smith case, Beach filed at least two answers in the consolidated suit; ' but it is not clear what disposition was made of them, or upon which one the cause was tried in the court below, if upon either. Indeed, it would seem from the findings of fact and decree that Beach’s lien Was held invalid on a question of fact not raised by the pleadings, and which was not regarded at the trial before the referee as an issue in the case; but of this we cannot determine. The record is in such inextricable .confusion, and involved in such uncertainty, that it is impossible to intelligently ascertain the questions really litigated between the parties to the appeal in the court below, or the rights of the parties, and, as such condition does not seem to be the result of inexcusable negligence on the part of Beach, his motion to remand, with permission to apply to the court below for leave to amend his answer so as to present the real issues in the case, and for a trial upon the merits, so far as his rights are involved, should be allowed: Branson v. Oregonian Railway Co. 10 Or. 278, seems to be a precedent for such a proceeding, and, without further elaboration of the facts, it is sufficient to say that we are all agreed that this is pre-eminently *423a case calling for a like remedy. The decree heretofore entered will therefore be vacated, and set aside, and this cause remanded to the court below for the purpose indicated.