215 P. 885 | Or. | 1923
At the close of the testimony both parties moved for a directed verdict. We will hereafter refer to appellant William Campbell as defendant, although there are other defendants named, who did not appeal.
Defendant assigns that the trial court erred in allowing plaintiff’s motion for a directed verdict in his favor, and denying defendant’s motion for a directed verdict in favor of defendant. There is little or no question in regard to the facts. Questions of law determine the controversy. Defendant maintains that plaintiff cannot recover, for the reason that when plaintiff purchased the automobile which he conditionally sold to McQueen he failed to report the transfer and have the license transferred by the Secretary of State in accordance with the provisions of Section 4780, Or. L. The latter part of that section provides thus:
“No sale or transfer of any motor vehicle registered under this act shall be valid without compliance with the provisions of this section.”
As to this point the case is governed by the ruling-in the case of Briedwell v. Henderson, 99 Or. 506
The defendant in the case at hand is claiming title to the automobile by the same source that plaintiff asserts title. Whatever defect there may be in plaintiff’s ownership of the car inheres in defendant’s ownership or conditional claim of ownership.
The plaintiff was entitled to recover possession of the car in question notwithstanding his failure to observe the directions of the statute in regard to registration.
When the action'was commenced in the District Court, a writ of replevin was issued which was quashed on account of error in the undertaking.
In order for a former judgment to be res judicata, it must appear that the judgment was rendered upon a legal trial of the action, or at least a full opportunity for such trial, involving a consideration of the merits of the case, and settling the issues alleged to be concluded by it by a judicial determination duly entered: 23- Cyc. 1226.
The former judgment in question was purely a judgment of nonsuit, rendered on motion of the plaintiff pursuant to Section 182, Or. L. Section 184, Or. L., provides that “when a judgment of nonsuit is given, the action is dismissed; but such judgment shall not have the effect to bar another action for the same cause.”
In rendering a judgment of nonsuit on motion of the plaintiff, the court cannot properly pass on the merits of the case or adjudicate the rights of the parties. Any attempt to do so would be a nullity: Carroll v. Grande Ronde Electric Co., 49 Or. 478 (90 Pac. 903); Northern Pac. Ry. Co. v. Spencer, 56 Or. 250, 252 (108 Pac. 180).
It is assigned that the court erred in directing the verdict in favor of plaintiff, and refusing to submit the cause to the jury for its determination. As stated, at the close of the testimony each party moved for a directed verdict. The doctrine prevails in this court that in a civil ease when both parties to an action at law move for a directed verdict they waive their right to trial by jury, and the trial court is required, as a matter of law, to determine whether a verdict should be rendered for the plaintiff or for the defendant: Wilson v. United States Lumber & Box Co. (Or.) 215 Pac. 491, opinion rendered May 29, 1923; First National Bank v. Bach, 98 Or. 332 (193 Pac. 1041), and cases there cited. In the present case the court was required to, and did properly direct the verdict. The verdict is supported by the testimony in the case. There was no error in granting the motion for such verdict.
"When defendant Campbell attempted to purchase the car in question neither McQueen, nor Mrs. Donahue who had possession of the car, was the owner thereof. The ear was not sold to the defendant under the authority, or with the consent, of the owner. Therefore he acquired no better title to the automo
As shown by the testimony the plaintiff demanded of defendant payment of the balance dne him for the car, which was about $75. This was all the right that the defendant could justly or legally claim in the premises.
Finding no error in the record, the judgment of the trial court is affirmed. Affirmed.