Brosius v. Hazelwood

• Decision Date: 20 November 1928
• Citation: 127 Or. 635,271 P. 992
• Parties: BROSIUS v. HAZELWOOD. [*]
• Court: Oregon Supreme Court

271 P. 992

127 Or. 635

BROSIUS v. HAZELWOOD. ^[*]

Supreme Court of Oregon

November 20, 1928

Department 2.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by F. C. Brosius against J. N. Hazelwood. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an appeal from a judgment for defendant in an action filed to recover the possession of certain personal property. In this action the jurisdiction of an inferior court in a former action is challenged. The plaintiff asserts that that court was without jurisdiction to try the former case, and that defendant's answer in the instant case is defective.

L Denham, of La Grande, for appellant.

Jesse Crum, of Elgin, for respondent.

BROWN J.

In the former action, the defendant herein, as constable, took into his possession by virtue of a writ of attachment certain personal property belonging to the plaintiff, which property plaintiff alleges was exempt from execution. The complaint avers that, on May 31, 1927, in Union county, Or., plaintiff was in possession of certain described personal property as owner, among which was an enameled lavatory valued at $20 which will be referred to hereafter; that, on that date without plaintiff's consent, the defendant wrongfully came into the possession of the above-described property which plaintiff valued at $318, and still retained the possession thereof, and that by reason thereof plaintiff was damaged in the sum of $50.

The defendant, answering, denied each and every allegation of the complaint, and for a further and separate answer and defense alleged at considerable length facts that tend to show that, in an action prosecuted by one H. H. Hug and J. C. Hug, as plaintiffs, against this plaintiff and his wife as defendants, to recover certain rental due upon office and apartment rooms in Elgin, Union county, Or., in the amount of $246, an attachment was issued out of the justice court which was regularly served by this defendant, and that the trial of that case resulted in a judgment for the plaintiffs therein. Then followed the action prosecuted in the case at bar.

The plaintiff herein raises many objections to the defendant's answer. To illustrate: The defendant, in answering, averred the filing of the complaint and the issuance of the summons in the former case, but did not aver that the summons had been served upon the defendant therein. From the answer, however, which is indeed voluminous and far from a model pleading, we learn that issue was joined between the parties and a trial had. So it matters not whether the court acquired jurisdiction of the person of the defendant in that case by service of summons, or by voluntary appearance. He had his day in court. After demurring to the answer filed in the instant case, the plaintiff did not stand upon his demurrer, but replied to the merits.

When tested by demurrer, the allegations of a pleading are to be construed most strongly against the pleader. But this condition is waived by pleading over, and the question becomes one against all reasonable intendments. See Olds v. Cary, 13 Or. 362, 10 P. 786; Savage v Savage, 36 Or. 268, 59 P. 461; Or. & Calif. R. Co. v. Jackson County, 38 Or. 589, 597, 64 P. 307, 65 P. 369; Byers v. Ferguson, 41 Or. 77, 65 P. 1067, 68 P. 5; Whitney v. Whitney, 114 Or. 102, 235 P. 293. We believe that a reasonable construction of the answer in this case fully informed the plaintiff concerning the nature of his antagonist's defense. It is apparent from the answer that, armed with a lawful attachment, the defendant lawfully took and lawfully detained ...