City of Philomath v. Ingle

• Citation: 41 Or. 289,68 P. 803
• Parties: CITY OF PHILOMATH v. INGLE.
• Decision Date: 03 May 1902
• Court: Supreme Court of Oregon

68 P. 803

41 Or. 289

CITY OF PHILOMATH v. INGLE.

Supreme Court of Oregon

May 3, 1902

Appeal from circuit court, Benton county; J.W. Hamilton, Judge.

Action by J.W. Ingle against the city of Philomath. Judgment of the circuit court, on a writ of review, affirming a judgment of the justice's court for defendant. The city brings a writ of review, and from an order sustaining the judgment it appeals. Reversed.

This is a proceeding by writ of review. It appears from the transcript that J.W. Ingle, having commenced an action against the city of Philomath in the justice's court of district No. 9, Benton county, Or., alleged in his complaint that said city was a municipal corporation; that E.A. Nichols and R.F. Holm, partners as Nichols & Holm, having, at its request, sold and delivered to it certain goods, of the reasonable value of $1.75, thereafter made an assignment for the benefit of their creditors, and the assignee sold the account to him; that he was the owner thereof; and that it was wholly unpaid. An answer having put in issue the material allegations of the complaint, a trial was had, resulting in a judgment in favor of the plaintiff in the action. A writ of review having been issued by the circuit court for said county, the judgment was annulled and the cause remanded whereupon the attorney for the city tendered to the justice's court the sum of $1.75, with interest, the justice's fees for issuing the summons, taking affidavits, and making the necessary docket entries, which being refused, he deposited with that court the sum of $20 out of which said account interest and fees were to be paid together with the costs and disbursements accruing since the receipt of the mandate, which sum was left as a tender to Ingle. The cause being again tried in the justice's court, judgment was rendered against the city for the sum of $1.75 and costs and disbursements, taxed at $169.70, to review which this proceeding was instituted. The petition for the writ of review sets forth, inter alia, as error, that the complaint does not state facts sufficient to constitute a cause of action. The writ having been returned, and a trial had, resulting in its dismissal, the city appeals to this court.

E.L Bryan and J.R. Wyatt, for appellant.

E.E. Wilson, for respondent.

MOORE, J. (after stating the facts).

It is contended by appellant's counsel that the complaint, not having alleged that Ingle presented his account to the recorder of the city of Philomath to be audited, did not state facts sufficient to constitute a cause of action, and that, this being so, the court erred in dismissing the writ of review, and in not annulling the judgment of the justice's court. It is maintained by respondent's counsel, however, that the averment so omitted was not material, and, no demurrer to the complaint having been interposed, the judgment of the justice's court cured the informal statement; besides, the appellant, having tendered the sum demanded in the complaint, thereby admitted its liability, and hence no error was committed in dismissing the writ. The city failed to allege in its answer that before the action was commenced it tendered to Ingle any sum in full payment of his demand, or that it then brought said sum into court, as required by statute, to avoid the payment of further costs and expenses. Hill's Ann.Laws Or. § 561. Its deposit of the sum of $20 in the justice's court for Ingle may have been an admission of its liability, but, if so, it was a matter of evidence only, and not tantamount to the statement of facts in a pleading necessary to constitute a cause of action. If at the trial in the justice's court the attorney for the city had admitted that his client was indebted to Ingle in the sum of $1.75, such acknowledgment would undoubtedly have been sufficient to establish the claim, so far as evidence thereof was required; but it would not support a judgment therefor unless the facts stated in the complaint were sufficient for that purpose, and a tender into court of a sum of money for the adverse party can have no greater effect. The question to be considered, therefore is whether the failure to allege that Ingle presented his account to the recorder of the city of Philomath to be audited is the omission of a material averment, for, if it was essential to the maintenance of an action, the complaint will not support the judgment; the rule being that a verdict aids an informal statement of facts in a pleading, but...