Craig v. Crystal Realty Co.

• Decision Date: 28 May 1918
• Citation: 89 Or. 25,173 P. 322
• Parties: CRAIG v. CRYSTAL REALTY CO. ET AL.
• Court: Oregon Supreme Court

173 P. 322

89 Or. 25

CRAIG v. CRYSTAL REALTY CO. ET AL.

Supreme Court of Oregon

May 28, 1918

In Banc.

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Suit by T. H. Craig against the Crystal Realty Company and others. Judgment for plaintiff, and the named defendant appeals. Affirmed.

This is a suit by T. H. Craig against the Crystal Realty Company, a corporation, and others, to foreclose two alleged liens for clearing and improving land. The plaintiff on January 20 1915, filed with the county clerk of Malheur county, Or., a verified claim, addressed to the defendant H. Tyree and all other persons whom it might concern, substantially notifying them that a lien was asserted against the southeast quarter of the northwest quarter of section 25, township 16 south range 47 east, in that county, for work and labor performed between October 1, 1914, and November 23d of that year in clearing, improving, ditching, and diking the described real property at the request of H. Tyree, who at all times mentioned in the notice was the owner and in possession of the premises; that Tyree stipulated to pay him for making the improvement a specified sum of money for each day's work with teams; that pursuant thereto the plaintiff's labor amounted to $423.50, on account of which he had received only $23, thereby leaving due him $400.50; and that 60 days had not elapsed since the last of such work had been performed. The plaintiff on April 26, 1915, also filed another verified claim in the same manner, declaring a lien against the northeast quarter of the northwest quarter of the section township, and range mentioned in the preceding notice, for work done in clearing, improving, leveling, and diking the real property, which labor was performed between August 7 1914, and March 25, 1915, at the request of Tyree who at all times stated in the notice was the owner and in possession of the premises; that the plaintiff was so employed by J. F. Carnifix, who was the agent and contractor of Tyree, and was then authorized to secure the performance of the labor; that pursuant to the agreement the plaintiff worked with teams, which service at the price stipulated therefor amounted to $621.37, on account of which he had been paid only $232.90, thus leaving due him $388.47; and that 60 days have not elapsed since the last of such work was performed.

Each of these liens is set forth as a separate cause of suit in the complaint, which alleges the performance of such work, the preparing and filing of the notices of liens therefor, in which an expense of $6 was incurred in each instance, that the plaintiff was entitled to specified sums as attorney's fees for foreclosing the liens, and that the defendants H. Tyree, Roska E. Kitch, Helen M. Kitch, John R. Worley, and Jane, his wife, A. M. Sloman, and G. W. Giesler and J. C. Giesler, partners as Giesler Bros., had or claimed some interest in the lands so described, but that such assertion of right or estate was subordinate and inferior to plaintiff's liens. A demurrer to each of the causes mentioned, on the ground that the complaint did not state facts sufficient, in either instance, to constitute a cause of suit, was overruled. Thereupon the defendants the Crystal Realty Company, H. Tyree, Roska E. Kitch, and Helen M. Kitch, jointly answering, denied the material averments of the complaint, except that each claimed an interest in the lands. Predicated upon these issues the cause was tried, and from the testimony received the court made findings of fact and gave a decree in favor of the plaintiff as prayed for in the complaint, and the Crystal Realty Company alone appeals.

Burnett J., dissenting.

R. W. Swagler, of Ontario, for appellant. Wells W. Wood, of Ontario (McCulloch & Wood, of Ontario, on the brief), for respondent.

MOORE, J. (after stating the facts as above).

Pursuant to a commission issued by the clerk of Malheur county, Or., to John O. McClintock, a notary public at Meadville, Pa., he, on August 1, 1916, without any stipulation and in the absence of the plaintiff, his counsel, or other representative, took the depositions of the defendants Roska E. Kitch, Helen M. Kitch, and H. Tyree, and with his certificate such sworn statements were mailed to the clerk of the court which appointed him. The envelope containing these papers was opened by order of the court at the trial, April 19, 1917, and though an objection interposed by plaintiff's counsel to the reading of such sworn statements, on the ground that they had not been taken in the manner prescribed, was sustained and an exception allowed, the depositions were received in evidence under section 405, L. O. L., and have been sent up with the transcript. It is contended by defendants' counsel that an error was committed in refusing to consider the testimony so taken and returned. The testimony of any witness residing or found in Oregon may be taken under certain circumstances by depositions in an action at law or a suit in equity. Id. § 837. Where a witness resides out of or is not found within this state, however, his testimony can only be taken in a suit in equity by a special referee, selected for that purpose, whose duty it is to return to the court appointing him the testimony so taken. Id. § 838.

In Marks & Co. v. Crow, 14 Or. 382, 13 P. 55, it was held that the statute then in force contained no provision for taking the deposition of a witness in a suit in equity, even de bene esse, unless a reference was made to find the facts. Since that decision was rendered the statute has been amended so as to authorize in some instances the submission of a cause to a referee, who is powerless to make any findings of fact in a suit in equity. Anthony v. Hillsboro Gold Min. Co., 58 Or. 258, 113 P. 442, 114 P. 95; In re Level, 81 Or. 298, 159 P. 558.

"A referee is a person appointed by the court or a judicial officer with power * * * to take and report the evidence in a suit in equity." L. O. L. § 1012.

"Subject to the limitations and directions prescribed in the order of reference, the trial by referees shall be conducted in the same manner as a trial by the court." Id. § 165.

"The referees shall file with their report the evidence received upon the trial." Id. § 166.

It will thus be seen that the testimony of a witness who is not a resident of or found within Oregon can only be taken in a suit in equity by a special referee appointed for that purpose, whose duties for the term of his selection, are equivalent to those of the court which he thus represents. A trial by a referee in another state of a suit in equity pending in this state, does not authorize such appointee to take depositions to be used in Oregon, and no power is to be found in our statute for the appointment of a commissioner to take in another state depositions to be used in Oregon in a suit in equity.

An author in speaking of the sworn statements of a witness received under such circumstances remarks:

"A deposition taken irregularly, and not in conformity with the requirements of law, is inadmissible as testimony, and may be excluded on motion at the trial of the cause." Weeks, Depositions, § 366.

No error was committed in refusing to permit such sworn statements to be received in evidence, or in declining to consider the testimony so given.

The plaintiff, referring to the work which he performed, as stated in the lien notice first filed, testified that he plowed the land there described and moved the earth so broken up into the low places; prepared the soil for cultivation and made a ditch across the west end of the tract; that he did clearing and ditching, the work of which at the price agreed upon amounted as stated in the first lien notice; that he had received payment on account thereof only as detailed, thereby leaving due the money so demanded; that he cleared the land described in the second notice of lien by removing the sagebrush then growing thereon; that he plowed and moved the earth as in the other tract described in the first lien notice, and built along the west side of the north 40 acres a fill or dike from 6 to 26 inches high as a base for a ditch that the work at the price specified amounted as stated in the second lien notice; that he had received on account thereof only the payments mentioned, and that there was due...