Bade v. Hibberd

• Decision Date: 21 January 1908
• Citation: 50 Or. 501,93 P. 364
• Parties: BADE v. HIBBERD.
• Court: Oregon Supreme Court

93 P. 364

50 Or. 501

BADE v. HIBBERD.

Supreme Court of Oregon

January 21, 1908

Appeal from Circuit Court, Union County; T.H. Crawford, Judge.

Action by G.W. Bade against C.R. Hibberd. Judgment for plaintiff and defendant appeals. Affirmed.

This action was commenced in the justice's court to recover money. The complaint alleges that between January and September, 1906, defendant became indebted to plaintiff in the sum of $369.50 for work and labor in cutting 79 acres of grain at the agreed price of $1.25 per acre, amounting to $98.75, and for 285 sacks of wheat sold and delivered at 95 cents per sack, amounting to $270.75, which defendant promised and agreed to pay; that no part thereof has been paid, except by the delivery to plaintiff of 120,000 feet of saw logs, at the agreed price of 85 cents per 1,000 amounting to $102, and by a check of $187.40, leaving a balance due of $80, for $187.40, leaving a balance due of $80, for which judgment is demanded. Defendant by his answer denies all the material allegations of the complaint, and for a further and separate defense avers that on or about the 18th of October, 1906, he and plaintiff had a full and complete settlement for cutting 15 acres of the grain, set out and included in the first item of the complaint, at $1.25 per acre, and 285 sacks of wheat, mentioned in the second item of the complaint, and it was then and there mutually agreed that the credits referred to in the complaint in the sum of $289.40 should be applied in full payment for cutting said 15 acres of grain, and for the 285 sacks of wheat and for no other purpose. Plaintiff had a judgment for $80 in the justice's court, and defendant appealed to the circuit court. A transcript on appeal was filed in the circuit court but, being incomplete and not properly certified, was, on motion of defendant, withdrawn and returned to the justice for correction and certification, and as again filed contained a copy of the justice's docket, showing that a reply was filed before the cause was set for trial, and annexed to the transcript is a reply, denying generally all the allegations of the answer, but which has no file marks thereon. Defendant moved the circuit court to strike such reply from the transcript, for the reason that it was not filed by the justice, and neither accompanied or was referred to in the transcript as first filed in the circuit court. This motion was overruled, and trial had, resulting in judgment in favor of plaintiff, from which defendant appeals.

C.H Finn, for appellant.

J.F. Baker, for respondent.

BEAN C.J. (after stating the facts as above).

The motion to strike the reply from the transcript was properly denied. The record of the justice's court states that the reply was filed in that court before trial, and the justice attached such reply to the transcript and returned it as one of the original papers in the cause, and this record cannot be impeached by ex parte affidavits. The fact that the justice failed to indorse on the reply the date of its filing is of no consequence. A paper is filed in contemplation of law when it is delivered to the proper officer with the intention that it shall become a part of the official record, and by him received to be kept on file, and such filing is not affected by the officer's failure to indorse the same. McDonald v. Crusen, 2 Or. 258; Conant's Estate, 43 Or. 530, 73 P. 1018.

On the trial defendant objected to the admission of any testimony on behalf of plaintiff, for the reason that the complaint does not state facts sufficient to constitute a cause of action and because two causes of action are improperly united. The objection to the sufficiency of the complaint being made for the first time on the trial, the same presumption will be indulged in to support the pleading, as if the objection had been made after verdict. Specht v. Allen, 12 Or. 117, 6 P. 494; McCall v. Porter, 42 Or. 49, 70 P. 820, 71 P. 976; Patterson v. Patterson, 40 Or. 560, 67 P. 664; Currey v. Butcher, 37 Or. 380, 61 P. 631. Unless, therefore, the complaint is so fatally defective that it would not be good after verdict, the objection to the admission of testimony in its support was properly overruled. The objection made to the complaint is that the contracts...