Dippold v. Cathlamet Timber Co.

Citation98 Or. 183,193 P. 909
PartiesDIPPOLD ET AL. v. CATHLAMET TIMBER CO.
Decision Date07 December 1920
CourtSupreme Court of Oregon

Department 2.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by W. S. Dippold and J. H. Dippold, partners, against the Cathlamet Timber Company. Judgment for plaintiffs, and defendant appeals. Reversed.

This is an action prosecuted for the purpose of recovering damages emanating out of injuries by fire to certain property situated in Wahkiakum county, Wash., near the town of Cathlamet. The character of the property injured, the nature of the damages, the cause of the fire, and the loss sustained by reason thereof, as claimed by the plaintiffs, is told in the following paragraphs of their complaint of record:

"That the plaintiffs, on the 16th day of April, 1917, entered into a contract with Bertha E. Martin for the purchase of the cedar timber on the following described land situate in the state of Washington, to wit: [[Description omitted.]

"That on or about the 1st day of May, 1917, the plaintiffs commenced the construction of a shingle mill on that part of said land situate in the county of Wahkiakum, state of Washington, at a point near the center of the line between said sections 6 and 7 in township 8 north of range 4 west of the Willamette meridian, and completed said mill at a cost of $4,500, and that said mill was reasonably worth said sum on the 1st day of July, 1918. That plaintiffs also erected buildings near said mill, which were reasonably worth the sum of $200 on said 1st day of July, 1918; that plaintiffs constructed a road to said mill from the county road leading in a northwesterly direction from Oak Point and other connecting roads, for the purpose of transporting shingles to the river landings at Oak Point and Hansen's landing on the Columbia river at a cost of about $1,000. That plaintiffs transported a donkey engine which they owned, to said lands of Bertha E. Martin during the month of May, 1917, for the purpose of drawing in cedar logs to said mill. That said donkey engine was at said mill on the said 1st day of July, 1918, and was, with the equipment thereon, reasonably worth the sum of $1,500.

"* * * The said fire resulting from the two fires aforesaid running together was carelessly and negligently permitted by said defendants to run along and upon said mountain ridge or plateau in an easterly direction, until the same finally was carried and communicated by the prevailing westerly winds to and upon the lands of the said Bertha E Martin during the latter part of June, 1918, and that on the 1st day of July, 1918, the said fire, being fanned and driven by a strong westerly wind, was communicated to and upon said shingle mill, and burned the same, thereby causing damage to these plaintiffs in the sum of $3,000 and burned a part of plaintiffs' said buildings, and rendered them all useless, to plaintiffs' damage in the further sum of $200, and burned the cable and sled to plaintiffs' said donkey engine, to plaintiffs' further damage in the sum of $100, whereby plaintiffs were damaged in the total sum of $3,300, as above set out, by reason of said fire destroying their property in and about said mill.

"That in and by the terms of said contract of sale of said cedar timber from said Bertha E. Martin it was provided, among other things, that plaintiffs were to pay 10 cents per 1000 shingles for the shingle output of said timber, to be computed on the number of 1000 shingles to be manufactured therefrom by plaintiffs. That on said 1st day of July, 1918, there was a large amount of cedar timber on said lands, which had been cut and thrown down, and the said cedar timber was very dry, on account of88 the spring and early summer being unusually dry, and a large amount of said cedar timber was burned and destroyed by said fire, to wit, a sufficient amount thereof to have manufactured at least 40,000,000 shingles. That said cedar timber was burned and destroyed as a result of defendant's carelessness and negligence as hereinbefore set out, to plaintiffs' damage in the sum of $6,000.

"Wherefore plaintiffs pray for a judgment against each and all of said defendants for the sum of $3,300 on account of the said damage to their said mill, buildings, and donkey engine, and for the further sum of $6,000 on account of their loss by reason of the destruction of said cedar timber, and for their costs and disbursements in this action."

The Cathlamet Timber Company, a corporation, defendant and appellant, voluntarily came into court and joined issue with the plaintiffs in the court below by filing an answer, traversing the material allegations of the complaint and alleging new matter by way of defense, to which new matter the plaintiffs replied. A trial by jury was had, which resulted in a verdict in favor of the plaintiffs in the sum of $2,000. The defendant appealed to this court, and for grounds assigned numerous errors of the court below relating to its rulings in allowing the introduction of evidence as to certain of the defendants; in refusing to strike out the evidence of one Rudolph Finkas; in allowing the introduction of the contract between Bertha E. Martin and the plaintiffs; in allowing the testimony to show that defendant was a branch of the Portland Lumber Company, without an offer to produce the record of either corporation; in allowing evidence showing plaintiffs' damage through the burning of timber; in allowing witnesses to testify to conversations with officers of the Portland Lumber Company, for the purpose of establishing relationship with the defendant corporation; in allowing witnesses to testify to the relationship of defendant and Portland Lumber Company, without the production of the corporate records of either corporation; in overruling a motion for a nonsuit in favor of defendant; in refusing to direct a verdict; and in giving a certain instruction.

The appellant now for the first time challenges the jurisdiction of the circuit court of the state of Oregon in and for Multnomah county to hear and determine the cause submitted to it by the parties thereto.

H. G. Platt, of Portland (Platt & Platt, of Portland, on the brief), for appellant.

John Van Zante and M. H. Carter, both of Portland, for respondents.

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

What assignments of error, if any, we shall here consider and decide, depends upon our determination of the question of jurisdiction:

"When a court has determined that it has no jurisdiction of the subject-matter of an action, it cannot properly consider any other question raised in the case." 17 Stand. Proc. 657.

This court, speaking through Justice Bonham, in the early case of Evans v. Christian, 4 Or. 375, 377, said:

"When a question of jurisdiction presents itself in any stage of a proceeding, and it is discovered that the court has no jurisdiction, either over the parties or the subject-matter of the cause, it is the duty of the court, on its own motion, to refuse to proceed further. Any attempt to exercise judicial functions otherwise than as authorized by law would be a nullity, and an idle waste of time."

To the same effect are Evarts v. Steger, 5 Or. 147; State v. McKinnon, 8 Or. 487; White v. Ladd, 41 Or. 324, 68 P. 739, 93 Am. St. Rep. 732; Kalyton v. Kalyton, 45 Or. 116, 127, 74 P. 491, 78 P. 332; Rynearson v. Union Co., 54 Or. 181, 102 P. 785; Kesler v. Nice, 54 Or. 585, 587, 104 P. 2; State v. Goodall, 82 Or. 329, 160 P. 595.

It has been said that--

"Jurisdiction is the power conferred on a court, by Constitution or statute, to take cognizance of the subject-matter of a litigation and the parties brought before it, and to legally hear, try, and determine the issues, and render judgment according to the general rules of law, upon the issues joined, be they either of law or of fact, or both." Brown on Jurisdiction, § 2.

Speaking through Chief Justice Fuller, the Supreme Court of the United States has said that--

"The fundamental question of jurisdiction, first of this court, and then of the court from which the record comes, presents itself on every writ of error or appeal, and must be answered by the court, whether propounded by counsel or not. Defiance Water Co. v. Defiance, 191 U.S. 184, 24 S.Ct. 63, 48 L.Ed. 140. Jurisdiction is given by law. Clyde & R. Plank Road Co. v. Parker, 22 Barb. N.Y. 323."

The organic and statutory laws of the commonwealth of Oregon created her courts and define their jurisdiction. In fact, no other power could establish the courts of the state, nor could jurisdiction flow from any other source. The law must confer upon the courts the power to act on the subject-matter upon which it gives judgment. The power or jurisdiction of the circuit court of the state of Oregon in and for Multnomah county to hear and determine the question as to whether or not the appellant, through negligence with fire, caused the shingle mill described in the complaint to be injured, depends upon the existence of the fact as to whether that mill was real or personal property, and that fact must appear from the pleadings. As was said by Justice Moore, speaking for this court in the case of Eagle Cliff Fishing Co. v. McGowan. 70 Or. 1, 7, 137 P. 766, 768:

"The authority of a court to hear and determine a cause depends upon the allegations of the initiatory pleading, and not upon the facts." It is stated in 17 Stand. Encyc. of Proced. p. 660:
"The jurisdiction of the subject-matter of any controversy in any court must be determined in the first instance by the allegations in the complaint or petition as the case may be, made in good faith, and does not depend upon the existence of a sustainable cause of action or by the evidence subsequently adduced"

--citing Manier v....

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