Higgins v. Fields , 150 Or. 528 ( 1935 )

In the last paragraph of the opinion of the court a final judgment is ordered. The writer thinks that the record does not justify the entry of a judgment which will be a bar to further litigation upon the questions of the possessory rights to the property in suit and the damages sustained by the wrongful taking and detention.

"When a decision has been made sustaining or overruling a demurrer, unless the party against whom the decision is made be allowed to amend or plead over, judgment shall be given for the plaintiff or defendant, as the case may be, for such amount, or relief, or to such effect, as it appears from the pleadings he is entitled to. * * *." Section 2-1505, Oregon Code 1930.

No such provision of the code is to be found with respect to a decision sustaining or overruling a motion.

No demurrer is presented in this case. The trial in the circuit court should have been upon the issues tried in the court below: Section 7-510, Ibid. The terms of this last cited section limits the trial in this case to a hearing and determination of defendant's motion to dismiss the proceedings and plaintiff's motion to vacate and set aside the judgment of the district court. There was no motion for a judgment of default for want of an answer. Even if such an order might have been justified, the question of its propriety was not presented either by written application, as prescribed in section 2-1101, Oregon Code 1930, or otherwise. For that reason, it could not be held to be within the issues tried in the court below.

Whether the motion to dismiss, upon which this case was determined in the district court, is of a character which extended the time for answering or not, nevertheless, "courts are more favorable toward a defendant than a plaintiff in default":McAuliffe v. McAuliffe, 136 Or. 168 (298 P. 239); Capalija v.Kulish, 101 Or. 666 (201 P. 545); Higgins v. Seaman, 61 Or. 240 (122 P. 40), and, — "It has been the policy of this court in a long line of decisions, which it is not necessary to cite, to favor a trial upon the merits whenever there has been no long delay upon the part of the defendant in seeking relief": Li SaiCheuk v. Lee Lung, 79 Or. 563 (146 P. 94, 156 P. 254).

"Where a motion made by the defendant is pending undisposed of, a judgment by default against him can not be taken, unless the determination of the motion either way could not affect the right of the plaintiff to proceed with the cause." 6 Ency. of Plead. Prac. 93; Note to Naderhoff v. George Benz Sons, 47 L.R.A. (N.S.), p. 863, et seq.

The tenable part of defendant's motion would not have affected plaintiff's right to proceed with the cause; but it has been held by this court that the pendency of a motion though not well taken is such an appearance as the law recognizes and extends the time for answering: Mitchell v. Campbell, 14 Or. 454 (13 P. 190). In passing upon defendant's motion to dismiss, the district court held that the complaint should have contained an allegation that plaintiff was entitled to the exclusive possession of the property in suit. While the writer agrees that this should not be adopted as a rule of pleading, he thinks that a motion which presents the question ought not to be deemed frivolous.

Under the doctrine that the circuit court cannot remand the cause to the district court (Forbis v. Inman Paulson Co., 23 Or. 68 (31 P. 204)), only an order of reversal should be made. That would terminate the case; but such order not being based upon any valid hearing upon the merits, would not constitute a bar to further litigation upon the same subject between the same parties: Terryll v. Bailey, 27 Minn. 304 (7 N.W. 261); Vaughan v. O'Brien, 57 Barb. (N.Y.) 491;Daley v. Mead, 40 Minn. 382 (42 N.W. 85); Miklauschutz v.Superior Court, 16 Cal. App. 226 (116 P. 376).

This is a case wherein a learned and experienced district judge determined that defendant should prevail. A learned and distinguished circuit judge at first concurred therein. Later, at the unauthorized trial presided over by another learned and experienced circuit judge, a jury, after hearing the evidence, decided that defendant should prevail, not only as to the right of possession of the property in suit but also as to damages for its wrongful taking and detention.

The writer is unable to convince himself that merely because, in the stress of controversy, error of procedure was committed by the trial courts, this court should disregard the attitude of these jurists and the deliberate judgment of the jury on the merits and should now arbitrarily direct the entry of a judgment exactly contrary thereto without the aid of a syllable of testimony and without giving the defendant any effective opportunity to be heard.

On the contrary, the writer thinks the order of reversal should direct that the same be entered with the express condition that it be without prejudice.

Mr. Justice BAILEY concurs in this dissent.