113 P. 438 (Or. 1911), Pettyjohn v. Oregon Coal & Nav. Co.

CourtSupreme Court of Oregon
Writing for the CourtEAKIN, C.J. (after stating the facts as above).
Citation58 Or. 392,113 P. 438
PartiesPETTYJOHN et al. v. OREGON COAL & NAVIGATION CO.
Date21 February 1911
Docket Number.

Page 438

113 P. 438 (Or. 1911)

58 Or. 392

PETTYJOHN et al.

v.

OREGON COAL & NAVIGATION CO.

Supreme Court of Oregon

February 21, 1911

Appeal from Circuit Court, Coos County; J.W. Hamilton, Judge.

Action by L.D. Pettyjohn and another, partners as Pettyjohn & Nicols, against Oregon Coal & Navigation Company. From a judgment of the circuit court for plaintiffs, on appeal from a like judgment in justice's court, defendant appeals. Affirmed.

Plaintiff shipped, by defendant's steamship F.M. Plant, certain goods of the value of $77.50 from San Francisco to Marshfield, Coos county, Or., and at the latter point defendant refused to deliver the goods to plaintiff upon demand, and plaintiff brought this action of claim and delivery in the justice's court No. 2 of that county, to recover the goods. In answer to the complaint defendant filed a plea in abatement, upon the ground of want of jurisdiction in the state court, alleging, in substance, that plaintiff shipped the goods on the F.M. Plant, which is owned and operated by defendant; and that defendant, by its bill of lading, agreed to deliver the goods at Marshfield in good order, the dangers of fire and navigation or any other accident or dangers of the sea excepted. While en route the steamship met with an accident, whereby her propeller became broken and was lost at sea, by reason of which she was totally disabled, and her master asked the assistance of the steamship John Paulsen, which rendered aid and towed the F.M. Plant to Marshfield, at which place defendant retained the cargo for the purpose of salvage in interest of the salvor. Defendant further alleges that it is entitled to keep the goods until the salvage charges are adjusted and paid by plaintiff; and that the United States District Court for the District of Oregon has exclusive jurisdiction thereof, and asks that the justice court be adjudged to be without jurisdiction. A reply was filed and plaintiff filed a motion for judgment upon the pleadings, which was allowed by the justice. An appeal was taken, and judgment was rendered, upon the pleadings, in favor of plaintiff. Defendant appeals to this court.

S.B. Linthicum and L.A. Liljeqvist (Williams, Wood & Linthicum and Clarke, Blake & Liljeqvist, on the brief), for appellant.

George Watkins, for respondents.

EAKIN, C.J. (after stating the facts as above).

In the circuit court and in this court the insufficiency of the plea seems to have been conceded, and is treated as an answer to the merits. As to the practice upon plea in abatement, see La Grande v. Portland Public Market (decided January 24, 1911) 113 P. 25. Therefore, we will treat it as an answer to the merits, namely, as alleging defendant's right to retain possession of the goods until the salvage is secured or paid. This brings us to the question whether the facts alleged create a lien on the goods for salvage in favor of the defendant, the owner of the vessel. As between the "salvors" and "salved," "salvage" applies to the ship, freight,...

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6 practice notes
  • OAG 66-74.
    • United States
    • Attorney General Opinions Oregon
    • May 26, 1966
  • OAG 62-65.
    • United States
    • Attorney General Opinions Oregon
    • May 11, 1962
    ...the intent and meaning of a statute resort may be had to repealed statutes. Baxter v. Davis, (1910) 58 Or. 109, 112 P. 410, 113 P. 438. The same reasoning applies to the 1955 ground water code as was expressed in the two opinions of the Attorney General cited herein. It ......
  • OAG 62-47.
    • United States
    • Attorney General Opinions Oregon
    • April 11, 1962
  • OAG 69-58.
    • United States
    • Attorney General Opinions Oregon
    • May 19, 1969
    ...thereon." A "majority" of votes, of course, means more than one-half. Baxter v. Davis, (1911) 58 Or. 109, 112 P. 410, 113 P. 438. ORS 251.080 provides that a court may declare a measure approved, although it has in fact been rejected by the voters, on the basis......
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2 cases
  • 162 A.3d 188 (Me. 2017), OJ-17-1, In re Opinion of Justices of Supreme Judicial Court
    • United States
    • Maine Supreme Judicial Court of Maine (US)
    • May 23, 2017
    ...). A majority, in contrast, refers to " more than one-half," that is, greater than fifty percent. Baxter v. Davis, 58 Or. 109, 113 P. 438, 438 (Or. 1911); see Gilmore v. Civil Serv. Bd., 528 So.2d 1271, 1272 (Fla. Dist. Ct.App. 1988) (defining a " majority" as " any......
  • 352 P.2d 564 (Or. 1960), Dilger v. School Dist. 24 CJ
    • United States
    • Oregon Supreme Court of Oregon
    • May 25, 1960
    ...such as may be necessary to carry into effect a granted power. [Citing authority]' Baxter v. Davis, 1911, 58 Or. 109, 111, 112 P. 410, 411, 113 P. 438. Page School Dist. 106 v. New Amsterdam Cas. Co., 1930, 132 Or. 673, 681, 288 P. 196. Consequently, it would appear, without attempting to d......

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