Crim v. Thompson , 112 Or. 399 ( 1924 )

PIPES, J.

It is urged that the court was without power to allow the amendments to the reply. The reply, which stood during the trial in April until the 22d of June, denied upon information and belief the allegations of the answer. The first and second further answers alleged only matters of records of the court. Such a denial was sham: Heatherly v. Hadley, 2 Or. 269; Peters v. Queen City Ins. Co., 63 Or. 382 (126 Pac. 1005); Brown v. Scott, 25 Cal. 189.

At the trial, however, and notwithstanding the insufficiency of the denial, the defendant offered the whole record of his title. It is contended that having treated the matter at issue, and having introduced evidence of his title, the amendment was properly allowed, and plaintiff cites in support of her contention Pacific Co. v. Cronan, 82 Or. 388, 393 (161 Pac. 692). But the amendment here allowed is not within the liberal ruling in the case cited. In that case the defendant had failed to deny two paragraphs of the complaint, which failure this court said was an obvious clerical error or oversight, and the case having been tried without a sufficient objection to inform the court or opposing counsel of the particular defect in the pleading, the amendment, permitting a denial, was allowed, to conform the pleading to the facts proved.

But here there was no clerical error or oversight. The respondent with deliberation averred that she had no knowledge or information sufficient to form a belief as to the truth or falsity of the defense’s separate answers, and that averment was allowed to stand without correction during the whole trial and for about two months afterwards. Yet every part of the record here pleaded was before the court below and this court on the appeal and under the scrutiny of plaintiff’s counsel in the former case. At the time of the amendment itself all this record was in evidence, and, except in two particulars, was unquestioned. The respondent could not, under these circumstances, truthfully aver that she had no sufficient information of the record. The amendment came too late to open a controversy as to the existence or proper authentication of any part of the record culminating in defendant’s title. It is not within the terms of the statute which governs amendments, Section 102, Or. L., because it is not in furtherance of justice, and changes substantially the cause of defense. It was error to allow the amendment.

The appellant contends that his demurrer to the two further replies should have been sustained. The first reply, which is recited in the statement of this case, consists of a judgment which, it is claimed, extinguishes the judgment under which the defendant claims. Reliance is placed upon the terms of that decree, to the effect that defendant has no right, title or interest in the property. But the reply does not state the nature of that suit, nor what were the issues there involved. It fails to show that the judgment under which the sheriff’s sale was made to defendant was either in the pleadings or the evidence before the court in that case. In the absence of such a showing we cannot say that the decree here pleaded and relied upon by plaintiff had the effect to extinguish or in anywise affect the judgment against which this reply is directed. The holding that the defendant had no right or interest in the property is not inconsistent with the existence of a judgment lien thereon, as a judgment lien is not a specific interest in the property: Oliver v. Wright, 47 Or. 322 (83 Pac. 870). The respondent cites authority that a judgment lien is such an interest as may be removed in a suit to quiet title: Johnson v. Samuelson, 82 Neb. 201 (117 N. W. 470, 130 Am. St. Rep. 666). But the reply in question does not allege that the judgment therein pleaded was a suit to quiet title. The demurrer should have been sustained: Glenn v. Savage, 14 Or. 567 (13 Pac. 442); Applegate v. Dowell, 15 Or. 513, 524 (16 Pac. 651); La Follett v. Mitchell, 42 Or. 465, 472 (69 Pac. 916, 95 Am. St. Rep. 780); 56 Cent. L. J. 2; Taylor v. Taylor, 54 Or. 560 (103 Pac. 524).

The second further reply consists of two parts. One part is to the effect that the judgment referred to was taken while the defendant was acting as plaintiff’s attorney. But it is not alleged that he was her attorney after the judgment was entered or at any time subsequent thereto. The defendant was not forbidden to be a bidder at the sheriff’s sale; the relation of attorney and client not existing at the time: Crim v. Thompson, 98 Or. 599 (193 Pac. 448).

The other part of this reply is to the effect that while the proceedings on execution were taking place the plaintiff was residing on the homestead, which was her dwelling place and abode, and it is asserted that the property, for that reason, was not subject to levy or sale on execution, and it is alleged that defendant knew of this fact, while plaintiff had no knowledge or notice of the proceedings. But there is no allegation in this reply that at the time of the levy, or at any other time, the plaintiff made any claim to her property as a homestead; nor does she allege that there was no levy, or that for any reason she was prevented from claiming her homestead. In the absence of such a claim, timely made, whether at the time of the levy or afterwards, the plaintiff’s land was not a homestead, and was subject to be sold to satisfy the judgment against her: Stewart v. McClung, 12 Or. 431 (8 Pac. 447, 53 Am. Rep. 374); Mansfield v. Hill, 56 Or. 400 (107 Pac. 471, 108 Pac. 1007); Hansen v. Jones, 57 Or. 416 (109 Pac. 868); Gollnick v. Marvin, 60 Or. 312 (118 Pac. 1016, Ann. Cas. 1914A, 243); Johnson v. Tucker, 85 Or. 646 (167 Pac. 787); Paulson v. Hurlburt, 93 Or. 419 (183 Pac. 937). The facts alleged in this reply do not, in any manner, affect the defendant’s title under the sheriff’s deed. The demurrer should have been sustained.

It is contended by the respondent that the proceedings offered by the defendant show that no valid levy of the property was made by the sheriff. But the record shows that this sale was confirmed by the court without objection. In such case, failure to levy on the debtor’s property is not, of itself, sufficient to invalidate a sale on execution, as confirmation cures irregularities arising between judgment and sale: Armstrong v. Travis, 97 Or. 587 (192 Pac. 649). But the respondent contends that a different rule applies in the case of a levy on a homestead. Her position is that, “there being no levy on the homestead, plaintiff never had her day in court, nor an opportunity as a homesteader to make her claim of exemption,” and it is argued that a notice of levy is in the nature of process, and is jurisdictional. It is true that the claim of homestead may be made at the time of the levy. But it may be made at any time before sale: Wilson v. Peterson, 68 Or. 525 (136 Pac. 1187). Plaintiff, therefore, did not lose her right to claim her homestead by the failure, if there was a failure, of the sheriff to make a levy. Besides, the plaintiff had a complete remedy for any injury. She could have objected to the confirmation, upon which the court had full power to set aside the sale, order a levy, with leave to her to make her homestead claim, or to make any appropriate order saving her rights. Section 241, Or. L., regulating the proceedings on confirmation, prescribes that the sale shall be confirmed, “unless * * it shall satisfactorily appear that there were substantial irregularities in the proceedings concerning the sale, to the probable loss or injury of the party objecting.” The failure to make the levy being an irregularity, if it would cause a loss or injury to the plaintiff, she could obtain relief from the court by objecting to the confirmation: Leinenweber v. Brown, 24 Or. 548 (34 Pac. 475, 38 Pac. 4).

Counsel for respondent cites some cases to the effect that confirmation is not an adjudication of the homestead claim: Krutz v. Batts, 18 Wash. 460 (51 Pac. 1054); Treptow v. Buse, 10 Kan. 170; Gapen v. Stephenson, 17 Kan. 613; McHugh v. Smiley, 17 Neb. 620 (20 N. W. 296); Best v. Zutavern, 53 Neb. 619 (74 N. W. 81). But an examination of these cases will show that under the statutes of those states the homestead right was more than a privilege and required no claim to be made by the homesteader. Under the cases heretofore cited this court has clearly indicated that the nature of a homestead in Oregon, under the law as it then stood, was not an estate, but a privilege which could be waived by a failure to make a timely claim. The respondent, in her testimony, excuses her failure to make her homestead claim by testifying that she was in California during the proceedings leading up to the sale, and at the time of the sale, and did not know of them. But that is no valid excuse: Leinenweber v. Brown, supra.

The appellant’s plea of the adjudication of the title in the case of Grim v. Thompson, supra, is a good plea. That case was tried on its merits upon the pleadings and the evidence in support thereof by the respective parties. Among other questions involved was the validity of the proceedings on execution involved in the instant case. In that case the plaintiff herself assumed the validity of the sale and upon that assumption asked relief, which was that the defendant, the purchaser at the sale, held . the title in trust for her by reason of a trust relation. That title was adjudged to be good and free from any trust. The respondent, however, refers to a clause at the end of the opinion in that case, to the effect that “the suit will be dismissed without prejudice to either party in equity or law, as they shall be advised to proceed.” She proceeds upon the theory that by virtue of that clause of the opinion she has the right to relitigate the questions here involved. But this court has no power to dismiss a suit that has been tried upon the merits without prejudice to another suit for the same cause or involving the same issues. Section 411, Or. L., defines the power of the court to dismiss a suit:

“Whenever upon the trial it is determined that the plaintiff is not entitled to the relief claimed or any part thereof, a decree shall be given dismissing the suit, and such decree shall have the effect to bar another suit for the same cause or any part thereof, unless such determination be on account of a failure of proof on the part of the plaintiff, in which case the court may, on motion of such plaintiff, give such decree without prejudice to another suit by the plaintiff for the same cause or any part thereof.” Section 411, Or. L.

It will be seen from this section that a dismissal without prejudice can only be made on account of failure of proof on the part of the plaintiff, in which case the court may, on motion of the plaintiff, give a decree without prejudice to another suit. The failure of proof here does not mean a failure to convince-the court by a preponderance of the evidence offered and considered, but the failure of proof to make a prima facie case: Haney v. Parkison, 72 Or. 249 (143 Pac. 926, Ann. Cas. 1916D, 1035). And the order is made upon the motion of plaintiff.

The respondent claims that the transcript here does not show that the sheriff’s deed appearing in the transcript was received in evidence. The order of confirmation and deed were offered together and appear as Exhibit 8. The objection is not well taken. It is also objected that the original deed and not a certified copy of the record thereof in the record of deed was received in evidence and that the execution of the deed was not proved. But we have held that under the sham denial of the reply the deed, being of record, is admitted, and no proof of its execution is required.

It follows from these views that the decree of the lower court should be reversed. A decree will be entered in this court dismissing the respondent’s complaint, and adjudging that the defendant is the owner in fee simple of the property involved, as against the respondent, and that the appellant have judgment for his costs in this court and in the court below. Reversed and Decree Entered.

McBride, C. J., and Burnett, Rand and Coshow, JJ., concur.