Cody v. Black

• Decision Date: 13 July 1920
• Citation: 191 P. 319,97 Or. 343
• Parties: CODY v. BLACK. [a1]
• Court: Oregon Supreme Court

191 P. 319

97 Or. 343

CODY v. BLACK. ^[a1]

Supreme Court of Oregon

July 13, 1920

Department 1.

Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge.

Ejectment by B. Cody against Hugh Black. Judgment for plaintiff after a trial to the court without a jury, and defendant appeals. Affirmed.

This is an action in ejectment. The complaint alleges that plaintiff is the owner and entitled to the possession of the west one-half of the southeast quarter of section 24, township 29 south, range 4 west of Willamette Meridian, and that defendant wrongfully withholds possession thereof. The answer denies that defendant is in possession of the land. The real purpose of the action is to establish the true boundary line between plaintiff's land, above described, and defendant's land, which is the west one-half of the northeast quarter of the same section.

By stipulation, there was a trial by the court without a jury which resulted in findings and a judgment in favor of plaintiff from which defendant appeals.

O. P Coshow, of Roseburg, for appellant.

Dexter Rice, of Roseburg (Rice & Orcutt, of Roseburg, on the brief) for respondent.

BENSON J. (after stating the facts as above).

Defendant's assignments of error numbered 2, 3, 4, and 5 challenge the correctness of the court's rulings in admitting certain testimony over defendant's objections. None of these assignments is referred to in defendant's briefs, and we must therefore treat them as waived and abandoned. Donohoe v. Portland Railway Co., 56 Or 58, 107 P. 964.

Assignments numbered 5 and 6 charge error in the making of findings of fact numbered 2 and 5. However, the record fails to disclose that defendant excepted to either of these findings, or that he requested different findings and excepted to the refusal of the court to make them. It follows that they cannot be considered upon this appeal. Tatum v. Massie, 29 Or. 140, 44 P. 494; Cassity v. Wilson, 76 Or. 595, 149 P. 1018.

This brings us to assignment of error numbered 1, which is:

"The court erred in overruling defendant's objections to the testimony of the witness Frear, and the admission into the evidence of the case of the plat made by said Frear, showing the result of his survey of the premises involved. Bill of Exceptions, pages 1, 2, 3 and 4."

An examination of the bill of exceptions shows the objections to have been directed to the admission of the plat made by the...