109 P. 1119 | Or. | 1910
Lead Opinion
Decided June 28, 1910.
On Motion to Dismiss.
Opinion
An action at law and a suit in equity, between the parties hereto and practically involving the same question, were tried and determined in the court below, and separate appeals therefrom were taken. The respondent’s counsel moves to dismiss the appeal and to affirm the judgment in the law action, on the ground that no
Opinion on the Merits
decided May 31, 1911.
Renewal of Motion to Dismiss.
On the Merits.
[115 Pac. 1068.]
On Motion to Dismiss.
delivered the opinion of the court.
Plaintiff files a motion to dismiss the appeal for the reason that defendant filed no transcript within the time allowed by law, and that the necessary clerk’s fees have not been paid. From the record it appears that the transcript in this case was filed on March 16, 1910, and within the time allowed.
Motion Denied.
Opinion on the Merits
On the Merits.
This is an action for the possession of personal property. The cause was tried by the court without the intervention of a jury, resulting in findings and judgment for plaintiff, and defendant appeals.
The complaint alleges, in substance, that the defendant, being the owner of one seven-passenger, 30-60 horse power, Stearns touring car, No. 1,116, valued at $2,500, which he purchased from the Crowe Automobile Company at Portland, Oregon, on May 21, 1909, for value received executed to plaintiff a chattel mortgage on said automobile, to secure the payment of a note of $2,000, due in ninety days from that date at eight per cent per annum, and reasonable attorney’s fees; that the chattel mortgage was duly recorded in Multnomah County, State of Oregon, and is a valid and existing chattel mortgage upon said property, and that said sum is due and unpaid; that on the day of the commencement of this action, and prior thereto, plaintiff demanded payment of the note, and upon defendant’s failure to make such payment plaintiff demanded possession of the property, delivery of which defendant refused, unlawfully withholding the chattels from plaintiff’s possession. Defendant, by his answer, admits the execution of the- note and mortgage upon the automobile to secure payment of $2,000, with interest; admits plaintiff demanded payment of the note,
From an examination of the complaint, it will be observed that the execution of the chattel mortgage upon the property in question is alleged, and that the conditions of such mortgage have been broken. The statute provides that “whenever the condition of any mortgage of goods and chattels shall be broken, the mortgagee shall be entitled to the immediate possession of the mortgaged property, and when after breach of the condition of any such mortgage the possession of the mortgaged property shall not be delivered up to the mortgagee upon demand by him, * * the mortgagee may recover the possession of such mortgaged property in the manner'provided by Chapter II of Title IV of the Code of Civil Procedure.” Section 7410, L. O. L.
“It is not necessary to allege a fact which the law will presume.”
In the case at bar the plaintiff’s complaint states facts entitling him to the possession of the personal property at the time of the commencement of the action, and does not come within the rule in Kimball v. Redfield, 33 Or. 292 (54 Pac. 216).
Finding no error in the record, it follows that the judgment of the lower court is affirmed; and it is so ordered.
Affirmed.