Coleman v. Meyer
| Decision Date | 26 January 1972 |
| Citation | 261 Or. 129,493 P.2d 48 |
| Parties | Harry E. COLEMAN, Respondent, v. George Frederick MEYER and Jean R. Meyer, Appellants. |
| Court | Oregon Supreme Court |
Theodore S. Bloom, Portland, argued the cause and filed a brief for appellants.
Thomas K. Thorpe, Portland, argued the cause for respondent. With him on the brief were Cookingham & Maletis, Portland.
Before O'CONNELL, C.J., and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.
An action was brought by plaintiff, a lessor of real property, to recover for unpaid rents, taxes, insurance and maintenance allegedly owed by defendants, who were claimed to be the assignees of the original lessee. The defendants, mother and son, failed to answer or to appear otherwise, and an order of default and a judgment were entered against them. Shortly thereafter, an execution was issued on the bank accounts of the mother, and, approximately one month after the judgment was entered, defendants filed a motion pursuant to ORS 18.160 1 to set aside the default and the judgment on the basis of defendants' mistake, inadvertence, surprise and excusable neglect. Answers were tendered by defendants with their motion.
After a hearing, the trial court denied the motion; it reconsidered the matter on a second hearing and again denied defendants' motion. Defendants appealed.
Defendants first contend that the trial court erred in entering the default and judgment because the return of service was defective, and, therefore, the court failed to acquire jurisdiction of them. Defendants' position is not well taken. Whether it be before or after judgment, a party waives all irregularities in the service of process when he appears generally and asks to plead and defend upon the merits of the case. Defendants' motion and tender of their answers constituted such an appearance. Ahlstrom v. Lyon, 169 Or. 629, 633, 131 P.2d 219 (1942); Woodburn Lodge, etc. v. Wilson, 148 Or. 150, 161--162, 34 P.2d 611 (1934); Herrick v. Wallace, 114 Or. 520, 528--531, 236 P. 471 (1925).
Defendants next contend that the judgment was void because it was entered for $28,882 instead of the $24,882 requested in plaintiff's complaint. Plaintiff admits that the amount of the judgment was improperly in excess of his prayer as the result of a claimed typographical error. Defendants cite as sole authority for their position 47 Am.Jur.2d 200, Judgments § 1176, which states: 'In some cases, the granting of more relief than is demanded in the complaint is regarded as rendering the judgment void, or at least rendering void the excessive relief granted.' None of the cases cited therein 2 for this proposition hold that the entire judgment is void when a judgment in excess of the amount demanded in the complaint is granted. Primarily, they are cases where a different kind of relief was granted than that which was requested. One of the cited cases, Russell v. Shurtleff, 28 Colo. 414, 65 P. 27, 89 Am.St.Rep. 216 (1901), distinguishes its holding from the situation which is present in this case by stating as follows:
That part of the judgment which was within the prayer was valid.
Defendants' principal contention is that the court abused the discretion vested in it by the statute when it failed to set aside the judgment. The case was heard upon affidavits. Defendant Jean R. Meyer, the mother, stated in her affidavit that a man came to her door and wanted to give her some papers and that she asked what they were about; that when she was told they concerned a motel (the property subject to the lease in question), she told the man she had nothing to do with it; that she did not accept the papers and thereafter he left without leaving any; that later, her son, the other defendant, came home and found in her mailbox a copy of the summons and complaint in an envelope addressed to him; that her only involvement with her son was to loan him money for business enterprises and that she had nothing to do with the lease of the motel; and that she was unaware of the judgment until her bank accounts were garnished and that she honestly thought that if she did not accept the papers, she would not be involved in the law suit.
The son filed affidavits in which he stated that his mother was 80 years of age and not versed in business affairs; that he found the summons and complaint in the mailbox as was alleged in his mother's affidavit; that his mother told him of the man coming to the door, of her conversation with him, and of her refusal to accept the papers; that his mother was not involved in the motel lease but had merely loaned him funds in connection with the operation of the motel; that, since his attorney had been in contact with plaintiff's attorney, defendant assumed that the papers were also served upon his attorney, who would take the necessary steps to defend the action.
The person serving the papers for plaintiff filed an affidavit in which he stated that he served a summons and complaint upon the defendant Jean Meyer, but was unable to serve the other defendant at that time because he was not at home; that he returned the next day, but Jean Meyer would not say if the other defendant was home and would not accept the papers for him, so he left the papers for George Meyer in the mailbox; and that plaintiff's attorney informed him that the service on George Meyer was not proper, so he served him personally at a later date.
A motion to vacate an order of default and judgment under the provisions of ORS 18.160 is addressed to the sound legal discretion of the trial judge. Day v. Day, 226 Or. 499, 500, 359 P.2d 538 (1961); Jaeger v. Jaeger, 224 Or. 281, 286, 356 P.2d 93 (1960). The action of a trial court in refusing to set aside a judgment or a decree will not be overruled except for a manifest abuse of discretion. Williamson v. Allen, 244 Or. 55, 59, 415 P.2d 733 (1966); Peake v. Peake, 242 Or. 386, 389--390, 408 P.2d 206 (1965). However, the section should be construed to the end that every defendant should have an opportunity to have his...
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...it should be exercised to conform with the spirit of [ORCP 71] and not to defeat the ends of substantial justice.” Coleman v. Meyer, 261 Or. 129, 134, 493 P.2d 48 (1972). This case is not on point with any other Oregon appellate case of which we are aware. However, prior cases establish sev......
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