Asher v. Pitchford

• Decision Date: 15 July 1941
• Citation: 115 P.2d 337,167 Or. 70
• Parties: ASHER <I>v.</I> PITCHFORD
• Court: Oregon Supreme Court

167 Or. 70

115 P.2d 337

ASHERv.

PITCHFORD

Supreme Court of Oregon.

Argued May 27, 1941.

Reversed July 15, 1941.

Certiorari — Appeal

1. The circuit court erred in treating a proceeding by writ of review as though the case were in the circuit court on appeal, granting petitioner leave to plead to amended complaint, and ordering the case placed on the trial docket of circuit court.

Certiorari — Special proceeding

2. A proceeding by writ of review is a special proceeding in which the court exercises only those powers conferred upon it by statute.

Certiorari — Appeal

3. Upon a proceeding by writ of review to review decision of district court, circuit court was wholly without power to order a trial de novo of the case.

Certiorari — Appeal

4. The object of writ of review is to keep inferior courts and tribunals within the bounds of their jurisdiction, and compel them to proceed regularly in the disposition of matters brought before them for determination, but such writ cannot be used as a substitute for an appeal.

Certiorari — Appeal

5. By statutory amendment making writ of review concurrent with the right of appeal, circuit court was given no power in proceeding by writ of review to order case placed on trial docket of the circuit court as if case were in circuit court on appeal, since such amendatory statute in no way changed the scope or effect of the writ of review, nor authorized determination of any questions in such a proceeding which could not have been tried therein before adoption of amendment.

Certiorari — Parties

6. Neither the district court nor the judge thereof is a "necessary party" or "proper party" to a proceeding by writ of review to review a decision of the district court.

Pleading — Amendment to conform to proof

7. The district court did not exceed its jurisdiction by permitting plaintiff in action for money loaned upon an express promise of repayment, after all evidence had been introduced and at conclusion of argument of counsel for defendant, to file an amended complaint setting forth a cause of action for money had and received for the purpose of conforming the pleadings to the proof.

Certiorari — Pleading — Amendment

8. On appeal from circuit court's order in proceeding by writ of review to review a decision of the district court permitting plaintiff to file an amended complaint in order to conform pleadings to the proof, appellate court was required to assume that the proof was as recited in district court's order, and, in the absence of anything in the record to the contrary, that such evidence was introduced on the trial without objections by defendant, and that defendant was not taken unaware by the nature of the testimony.

Pleading — Amendment

9. Where the proof in an action for money loaned on an express promise of repayment disclosed that the money had not in the strict sense of the word been loaned but had been delivered to defendant to be used for a certain purpose, and that such purpose had been fulfilled, thereby creating an implied obligation for return of the money to plaintiff, the court properly permitted plaintiff to file an amended complaint setting forth a cause of action for money had and received so as to conform pleadings to the proof, instead of turning plaintiff out of court for a failure to observe the niceties of distinction between the common counts for money lent and money had and received.

Pleading — Amendment

10. Where original complaint stated a cause of action for money loaned on an express promise of repayment, an amended complaint, setting forth a cause of action for money had and received, did not destroy the identity of the cause of action or substantially change it within meaning of statute authorizing court to allow pleadings to be amended at any time before the cause is submitted, if such amendment does not substantially change the cause of action or defense.

Certiorari — Pleading — Amendment

11. The district court by permitting plaintiff, before submission of an action for money loaned, to file an amended complaint setting forth a cause of action for money had and received did not erroneously exercise its judicial functions within the meaning of statute setting forth cases in which a writ of review should be allowed, since such amendment did not destroy the identity of the cause of action or substantially change it.

                  See 21 R.C.L. 577 (7 Perm. Supp., 5076)
                  14 C.J.S., Certiorari, § 2
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

JAMES W. CRAWFORD, Judge.

Action by Clara Pitchford against George Asher to recover money loaned to defendant upon his express promise of repayment. To review a judgment of the district court in favor of plaintiff, defendant sued out a writ of review, and from the order of the circuit court granting the alternative prayer of the petition for review, plaintiff appeals.

REVERSED.

Ashby C. Dickson, of Portland, for appellant.

W.S. U'Ren, of Portland, for respondent.

LUSK, J.

This is a proceeding by writ of review, under Ch. 2, Title 11, O.C.L.A., to review the decision of the district court for Multnomah county. The defendant in the writ has appealed from the order of the circuit court.

It appears from the return to the writ that the defendant, Clara Pitchford, as plaintiff in the district court, sued the petitioner in the writ, George Asher, to recover the sum of $250, with interest which the complaint alleged "plaintiff loaned to the defendant, for his accommodation and at his request and upon his express promise of repayment." The defendant in that case answered, denying generally the allegations of the complaint and alleging a counter-claim which is not now material. On the trial, after all the evidence had been introduced and at the conclusion of the argument of counsel for defendant, the court instructed plaintiff's counsel to file an amended complaint setting forth a cause of action for money had and received, and thereafter, over the objection of counsel for the defendant, an amended complaint was filed reading as follows:

"I.

"That during the month of January, 1938, Perry Pitchford was the owner of a pool hall business at 8207 North Denver Avenue in the City of Portland, Oregon, and operated and conducted the same under the assumed name of `Perry's Pastime,' and the plaintiff was the wife of said Perry Pitchford and derived her livelihood from the income of said business.

"II.

"That on the 3d day of January, 1938, defendant had and received of and from the plaintiff. and for and to plaintiff's use and benefit, Two Hundred and Fifty Dollars, in manner as follows: That on said third day of January, 1938, the said money was delivered to, and received by, defendant for the sole and special purpose of enabling defendant while assisting plaintiff's husband in the operation of his said pool hall business to cash checks for his patrons; which purpose had been fully carried out and completed prior to the commencement of this action, to-wit, on or about March 14, 1938, on which date defendant and his wife acquired the ownership of said pool hall, plaintiff's husband having died in the meantime.

"III.

"That on or about the 4th of June, 1938, through her attorney, plaintiff demanded repayment of said sum of Two Hundred and Fifty Dollars, but defendant has failed, refused and neglected to repay or return said money or any part thereof to plaintiff." (Prayer omitted).

The defendant thereafter moved to strike the amended complaint from the files. This motion was denied in an order which recited that the court had allowed the complaint to be amended "so as to conform the same to the facts proved upon the trial", and judgment was thereupon entered in favor of the plaintiff as prayed for in the amended complaint. The judgment order contains a similar recital as to the reason for allowance of the amendment.

The defendant then applied to the circuit court for a writ of review upon the claim that the district court exceeded its jurisdiction and erroneously exercised its judicial functions by its order permitting the amendment to be filed. The writ was issued and return made by the district court, and, after argument upon the return to the writ, the circuit court entered the following order:

"First. That the prayer of the petitioner, George Asher, in said Writ of Review for dismissal of plaintiff's action in the District Court be and it hereby is denied.

"Second. That the alternative prayer of the petitioner and plaintiff, George Asher, on the Writ of Review for leave to plead to the amended complaint filed by the plaintiff, Clara Pitchford in said action in the District...