Baisley v. Baisley

• Decision Date: 11 May 1887
• Parties: BAISLEY v. BAISLEY.
• Court: Oregon Supreme Court

13 P. 888

15 Or. 183

BAISLEY v. BAISLEY.

Supreme Court of Oregon

May 11, 1887

Appeal from circuit court, Baker county.

M.L Olmstead, for appellant.

Zera Snow, for respondent.

THAYER, J.

The respondent commenced an action against the appellant in said circuit court upon a promissory note executed by the latter to the former. The appellant filed an answer, in which he alleged that the only consideration for the note was the sale of an undivided three-eights interest in a certain quartz mining claim, and that, at the time of the making the note the respondent agreed to pay the said interest in the claim to him immediately on the same day the note was executed that the respondent did not so convey the same on the day the note was executed, nor had since conveyed it, or any part thereof. The respondent filed a reply to the new matter contained in the answer controverting the same. It appears from a copy of the record transmitted to this court that the case was continued on June 26, 1886, for the term then in session; and that on the twelfth day of October, 1886, the appellant filed a motion and affidavit for a continuance of the case for the term then in session. The respondent opposed the motion, and the parties seem to have terminated the matter by mutual consent in open court that the case be set for trial for the third day of January, 1887, before Judge BIRD, judge of the Sixth judicial district. Facts set forth in the affidavit for the continuance disclosed that the regular judge of the district (Judge ISON) was disqualified to preside in the case; and that circumstance, doubtless, had an influence in inducing the consent referred to. The next proceeding in the case is shown by a journal entry of the thirteenth of January, 1887, which is as follows: "This cause coming on to be heard before Hon. J.H. BIRD, judge of the Seventh judicial district of this state, he presiding at the request of Hon. L.B. ISON judge of the Sixth judicial district, and on Thursday morning, January 13, 1887, the said Judge BIRD opened court in a building near the county court-house in Baker City, and at this time the defendant's attorneys, Olmstead &amp Anderson, appeared, and without any objection to the jurisdiction of this court, or the place of holding the court, requested the court to postpone this cause until the afternoon of this day on account of the absence of the defendant, and then stated that if the defendant did not appear they would withdraw from this cause. Thereupon the impaneling of the jury was postponed until the afternoon at 1:30 o'clock P.M., and, at the coming in of the court in the afternoon, the attorneys for the defendant filed the affidavit of M.L. Olmstead, one of the attorneys for defendant, and also filed his objections to the jurisdiction of the court." The affidavit was to the effect that the circuit court was in session with LUTHER B ISON, presiding; that defendant had no knowledge or information, as affiant believed, that the cause would be called for trial while the said court was at the same time engaged in the trial of State of Oregon v. Israel and Thorndyke; that the defendant was absent without the affiant's knowledge or consent; that he had diligently endeavored to notify the defendant that he was...