76 P. 778 | Or. | 1904
after stating the facts in the foregoing terms, delivered the opinion of the court.
2. It is insisted that the second amended complaint states or attempts to state facts requiring the interposition Of a court of equity, while the original complaint was an action at law, and that the court erred in permitting an amendment which changed or attempted to change the proceeding from an action at law to a suit in equity. Conceding, for the purposes of this case only, that under our system litigants are compelled at their peril properly to designate or entitle proceedings commenced by them— that is, whether at law or in equity — and that one who
3. It is claimed that the amended complaint as filed did not state facts sufficient to constitute a cause of suit, because the Gaston Cooperative Milling Company and the personal representatives of Rogers are not parties. No such objection was made in the court below, and it is therefore waived: B. & C. Comp. §§ 68, 71; State ex rel. v. Metschan, 32 Or. 372 (46 Pac. 791, 53 Pac. 1071, 41 L. R. A. 692).
4. In giving judgment, the court computed interest on the amount paid by the plaintiff to satisfy and discharge the promissory note to the Bank of Forest Grove at the rate of 8 per cent per annum to the date of the decree. This was error. The interest should have been computed at 8 per cent until the time the rate was changed in October, 1898, and from that time at 6 per cent: Graham v. Merchant, 43 Or. 294 (72 Pac. 1088). The decree will be modified accordingly; neither party to recover costs in this court. Modified.