137 P. 750 | Or. | 1914
Lead Opinion
delivered the opinion of the court.
- This is a motion to dismiss an appeal; the movent assigning two reasons therefor: (1) That appellant is in no sense aggrieved by the judgment, inasmuch as the court gave him “everything prayed for”; (2) that “there has ceased to be, if there ever was, any controversy between the parties.”
Historically the case presents this situation: The relator, Geo. S. Shepherd, for a period of time prior to December 9, 1911, the date of the contest in question, was captain of the Oregon Naval Militia. The time of the annual election arriving, defendant E. M. Simpson, contested with relator his right to a reelection. The canvassing board declared defendant elected to the office of captain of the Oregon Naval Militia, whereupon relator, conformable to the provisions of Section 368 et seq., L. O. L., brought this action in ”ie name of the state against defendant for usurpation of the office. Service of process was made upon defendant, but, no appearance being made, defendant’s default was noted and a judgment for want of an answer entered. After trial the lower court adjudged that defendant never qualified for the office to
Believing this court is without jurisdiction in the premises, this appeal is dismissed by the court sua sponte.
Motion to dismiss overruled. Appeal dismissed by court on its own motion. Motion Overruled.
Appeal Dismissed by Court : Rehearing Denied.
Rehearing
Decided February 3, 1914.
On Petition for Rehearing.
(138 Pac. 467.)
delivered the opinion of the court.
The defendant in the court below did not answer, or otherwise appear in this action. The Circuit Court
“Any party to a judgment or decree other than a judgment or decree given by confession, or for want of an answer, may appeal therefrom. The party appealing is known as the appellant, and the adverse party as the respondent; but the title of the action or suit is not changed in consequence of the appeal.”
Section 185, L. O. L., is partly in these words:
“Judgment may be had upon failure to answer, as follows: When the time for answering the complaint has expired, and it appears that the defendant, or one or more of several defendants, in the cases mentioned in Section 61, has been duly served with the summons and has failed to answer the complaint, the plaintiff shall be entitled to have judgment against such defendant or defendants—
“ (1) In an action arising upon contract for the recovery of money or damages only; if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted by the court or judge thereof, the clerk, upon the application of the plaintiff made in writing and filed with the clerk, shall enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons,*98 against the defendant, or against one or more of several defendants, in cases provided for in Section 61;
“ (2) In other actions, including all actions sounding in damages or tort, as opposed to an action on contract or for debt, if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted by the court or judge thereof, the clerk shall, upon the written motion of the plaintiff being filed, enter the default of the defendant, and thereafter the plaintiff may apply to the court for the relief demanded in the complaint; and the court shall, upon such application, give judgment for the amount claimed in the summons, or the relief demanded in the complaint, unless it be necessary, to enable the court to give judgment or carry the same into effect, to take proof of any matter of fact, in which case the court may order the entry of judgment to be delayed until such proof be taken. The court may hear the proof itself, or make an order of reference, or that a jury be called to inquire thereof. Thereupon the court shall enter judgment in accordance with its own findings, or the verdict of the jury; provided, however, that in all cases where the cause of action is for damage which is not liquidated, if a jury shall, by either party be demanded to assess the damage, the court before which such action is pending must grant such jury trial, or, if neither party demand a jury the damage may be assessed by the court. # # ”
The petition for rehearing proceeds upon the theory that, because the court may in certain cases take testimony in actions where the defendant has failed to answer, and that such testimony has been taken in this case, the judgment is not one for want of an answer within the meaning of Section 549, L. O. L., supra. But what gives the court authority to proceed in the manner indicated? Plainly, the fact that the defendant has not answered. No matter what proceedings are taken after default is entered, the final judgment is none the less one for want of an answer from which neither party can appeal. It is argued that this lodges
We adhere to the former opinion.
Appeal, Dismissed by Court : Rehearing Denied.