45 P. 774 | Or. | 1896
Opinion by
An examination of the act in question shows that it was the intention of the legislative assembly to simplify proceedings in justice’s courts, and to permit issues to be joined and action tried without the necessity of formal pleadings, but we can not think that the act warrants the filing of an answer raising an issue of fact in the circuit court on appeal not made in the justice’s court. The act does permit formal pleadings to take the place of the bill of items of an account filed by the plaintiff, and the counterclaim or set-off filed by the defendant, in the justice’s court; but s.uch amendment is allowable in the circuit court only when no formal pleadings have been filed in the justice’s court from which the appeal is taken. In the case at bar the defendants relied on their demurrer, and, not having filed any counterclaim
In Moser v. Jenkins, 5 Or. 447, it was held that no amendment of the pleadings substantially changing the issues tried in the. justice’s court was allowable in the circuit court on appeal. In Currie v. Southern Pacific Company, 21 Or. 566, (28 Pac. 884,) it was held that the circuit court, on appeal from the justice’s court, had no authority to allow an answer to be filed after a demurrer was overruled, as this would change the issue made in the justice’s court from one of law to that of fact. This decision was approved and followed in Forbis v. Inman, 23 Or. 68, (31 Pac. 204,) and, in the absence of a statute to the contrary, has become a rule of practice in this state. It is a familiar-principle that an appellate court can try only the issues which have been tried in the lower court. If the rule were otherwise issues of -fact would rarely be tried in the justice’s court, for by filling a demurrer judgment could be rendered, and on appeal the issues could be settled and tried in the circuit court, thus practically dispensing with a trial in the justice’s court. These inferior courts are established for the trial of actions which do not involve great amounts or principles, and the party who seeks the aid of such a court is afforded by the act in question a ready means of having his action there tried on its merits. There being no error in the record, it follows that the judgment is affirmed.
Affirmed.