Currie v. Southern P. Co.
| Decision Date | 09 January 1893 |
| Citation | 31 P. 963,23 Or. 400 |
| Parties | CURRIE v. SOUTHERN PAC. CO. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Linn county; REUBEN P. BOISE, Judge.
Action by A.E. Currie against the Southern Pacific Company. From a judgment entered on an order allowing plaintiff's motion for nonsuit, defendant appeals. Affirmed.
A.H Tanner, for appellant.
Geo. E Chamberlain, for respondent.
This was an action to recover damages, brought by the plaintiff against the defendant in a justice's court. The answer after making the usual denials, set up a separate defense which was stricken out on motion, and the cause proceeded to trial upon the issues joined, and the judgment went for the plaintiff. The defendant appealed to the circuit court, and the motion was overruled, and the plaintiff allowed to file a reply to the further and separate defense. The cause was then tried upon the issues so joined, and a judgment rendered for the plaintiff. An appeal was taken to this court, and the judgment of the circuit court reversed, on the ground that the court erred in allowing plaintiff to file a reply in the circuit court, and the cause was remanded for further proceedings. The plaintiff thereupon filed a motion for nonsuit, and the defendant filed a motion for judgment for want of a reply. The two motions were presented together, and the court overruled the motion for judgment, and allowed plaintiff's motion for a nonsuit.
The only questions now presented are--First, did the court err in overruling defendant's motion for a judgment on the pleadings, and refusing to enter judgment for want of a reply? and, second, did the court err in sustaining and allowing plaintiff's motion for nonsuit? As already disclosed, the failure of the plaintiff to file a reply to the separate defense was not because he confessed or admitted it, but on the ruling of the court upon a question of law. Upon the questions presented, both the justice and circuit court erred, which prevented the plaintiff from prosecuting his action, because the issues were not made up. When the cause was remanded, it was to be tried de novo. It was put back in the same position that it was before the mistake. The case stood there, owing to the error in the ruling, without a reply. There had been a mistake, as this court held, but when the judgment was reversed, and the cause remanded, it stood on the docket as though no proceedings had been had therein. It was there precisely for trial de novo as it came from the justice court, and the plaintiff could either take a nonsuit or take the consequences of any further proceedings. The Code provides that a nonsuit can be taken by the plaintiff at any time before trial, unless a counterclaim has been pleaded as a defense. Hill's Code, § 246. At common law the plaintiff might take a nonsuit, as of right, at any time in the progress of the trial, as he might prefer, and thereby reserve to himself the power to bring a fresh action for the same subject-matter; and this right continued until after the...
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State v. Pacific Live Stock Co.
...court in Currie v. Southern P. Co., 21 Or. 566, 28 P. 884, shows that the statement of Currie v. Southern Pacific Company, found in 23 Or. 400, 31 P. 964, is not altogether accurate. In latter opinion the case is stated as if the issues of law were all presented by motion, whereas in fact t......
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Northwestern & Pacific Hypotheek Bank v. Rauch
... ... 103; Byrd v ... Blessing, 11 Ohio St. 362; Aultman v. Reams, 9 ... Neb. 487, 4 N.W. 81; State v. Rost, 48 La. Ann. 455, ... 19 South 256; Currie v. Southern P. Co., 23 Or. 400, ... 31 P. 963; Black's Law Dictionary, 1188.) The appellants ... in their answer sought affirmative relief, to wit: ... ...
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Goin v. Chute
...dismissed, whereas in the suit now before us the judgment favored the defendant. But, nevertheless it remains true, that in Currie v. Southern P. Co. the right of the to take a nonsuit after he had two trials was recognized. It will be observed from the cases which we have cited, that the w......
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Chance v. Carter
... ... at any time before trial "unless a counterclaim has been ... pleaded as a defense" ( Currie v. Southern Pacific ... Co., 23 Or. 400, 402, 31 P. 964; Hume v ... Woodruff, 26 Or. 373, 375, 38 P. 191; Ferguson v ... Ingle, ... ...