Bernert v. Multnomah Lumber & Box Co.
| Decision Date | 27 July 1926 |
| Citation | 248 P. 156,119 Or. 44 |
| Court | Oregon Supreme Court |
| Parties | BERNERT v. MULTNOMAH LUMBER & BOX CO. ET AL. |
Department 2.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
On petition for rehearing. Petition denied.
For former opinion, see 247 P. 155.
John A. Collier and Earl F. Bernard, both of Portland ( Collier, Collier & Bernard, of Portland, on the brief), for appellants.
W. P. La Roche, of Portland (L. E. Crouch and J. F. Reilly, both of Portland, on the brief), for respondent.
In a petition for rehearing, our attention is directed for the first time that motion for judgment on the pleadings became functus officio for the reason that an amended answer had been filed after the filing of the motion and before argument or ruling was had thereon. It was stipulated that the reply to the original answer should be considered as a reply to the amended answer. Counsel then proceeded to argue the motion for judgment on the pleadings, without suggesting to the trial court that it had ceased to be a part of the record. We believe it was the intention of counsel to consider the motion as applicable to the pleadings after amended answer had been filed. The point has been waived.
We appreciate that counsel may have been misled by the rule of practice announced in Davidson v. Almeda Mines Co., 66 Or. 412, 134 P. 782, 48 L. R. A. (N. S.) 847, which in the instant cause has been expressly overruled, but do not for that reason think it advisable longer to adhere to a rule of practice which is unquestionably wrong.
As stated in our former opinion, the granting of this writ was a matter of discretion, and it was incumbent upon appellant to show an abuse thereof. After an examination of the facts as alleged in the pleadings, we cannot say that appellant has sustained his contention in that respect.
Petition for rehearing is denied.
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