Draper v. Mullennex

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before McALLISTER; WARNER
• Citation: Draper v. Mullennex, 225 Or. 267, 357 P.2d 519 (Or. 1960)
• Decision Date: 21 December 1960
• Parties: Hattie M. DRAPER, Appellant, v. LaVelle MULLENNEX, J. R. Mears, Judge of the District Court of the State of Oregon for Multnomah County, and Elmer Bennett, Clerk of said Court, Respondents.

Page 519

357 P.2d 519

225 Or. 267

Hattie M. DRAPER, Appellant, v. LaVelle MULLENNEX, J. R. Mears, Judge of the District Court of the State of Oregon for Multnomah County, and Elmer Bennett, Clerk of said Court, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted Nov. 30, 1960.

Decided Dec. 21, 1960.

Donald D. McKown, Hillsboro, argued the cause for appellant. On the briefs was Paul M. Reeder, Hillsboro.

Thomas M. Goldsmith, Portland, argued the cause and filed a brief for respondents.

Before McALLISTER, C. J., and WARNER, PERRY, GOODWIN and KING, JJ.

WARNER, Justice.

This matter had its origin in the District Court for Multnomah County. There the respondent Mullennex, as plaintiff and as assignee of Boyd and Erwin, attorneys, brought action for professional services upon a balance due in the amount of $600, together with interest at six per cent from December 2, 1957. The petitioner, as the defendant in that action, moved to dismiss plaintiff's complaint on the ground that the court did not have jurisdiction of the subject matter for the reason that the amount demanded was in excess of $1,000. The manner of computing the excess by the petitioner will later appear. The district court overruled the motion, whereupon Draper petitioned the circuit court for a writ of review. After hearing the writ was dismissed. From that order of the circuit court, the petitioner Draper appeals.

Plaintiff's complaint as first filed alleged services rendered of the reasonable value of $773, with a balance of $600 as due under the assignment. She also alleged in paragraph V the following:

'That defendant['s] failure and refusal to pay for these services has necessitated the plaintiff's employment of an attorney for the collection thereof, and that the reasonable fee for said attorney is the sum of three hundred and fifty dollars ($350.00).'

The district court is one of inferior jurisdiction. In civil matters its jurisdiction is limited to cases wherein the amount claimed does not exceed $1,000. ORS 46.060. Jurisdiction is tested by an examination of the ad damnum clause or clauses of the complaint. Salitan v. Dashney, 1959, 219 Or. 553, 347 P.2d 974, 976, and cases there cited.

A cursory inspection of paragraph IV, wherein the claim of $600 is alleged, together with interest thereon at six per cent from December 2, 1957, and paragraph V, demanding payment of $350 as attorney's fee, would seem to indicate a total claim in excess of $1,000, or approximately $1,025. But a more critical examination, particularly of paragraph V, results in a contrary conclusion.

The question of jurisdiction is only to be resolved from what may be found in the several allegations well pleaded. Surplusage or other matters which may be treated as surplusage, irrelevant or immaterial, raise no issue and should be disregarded. Doyle v. Kammeraad, 310 Mich. 233, 17 N.W.2d 165; Zaepfel v. Parnass, 140 Misc. 539, 250 N.Y.S. 740; Neis v. Whitaker, 47 Or. 517, 521, 84 P. 699; Graham v. Coos Bay R. & E. R. & Nav. Co., 71 Or. 393, 403, 139 P. 337; Patterson v. Skoglund, 181 Or. 167, 178, 180 P.2d 108; Lytle v. Payette-Ore. Slope Irr. Dist., 175 Or. 276, 293, 152 P.2d 934, 156 A.L.R. 894; 71 C.J.S. Pleading § 508(2), p. 1038; 41 Am.Jur. 323, Pleading § 51.

Allegations which neither add to nor detract from material allegations are surplusage. 41 Am.Jur., supra, at 323, § 52; Boyce v. Toke Point Oyster Co., 145 Or. 114, 116, 25 P.2d 930. The test of surplusage is whether such matter could be stricken and leave a good pleading. 71 C.J.S., supra, § 36, at p. 96; 41 Am.Jur., supra, at 323, § 52.

An allegation in an ad damnum clause claiming attorney fees not recoverable must be disregarded in the determination of jurisdictional amounts. Massachusetts B. & Ins. Co. v. San Francisco-Oakland T. Rys., 39 Cal.App. 338, 178 P. 974; St. Paul Fire & Marine Ins. Co. v. Peck, 37 Okl. 85, 130 P. 805, 807; Gannett v. King, Fla.App.1959, 108 So.2d 299, 302; 21 C.J.S. Courts § 59, p. 74.

With these rules in mind, we turn to test the allegations of paragraph V to determine whether they would be vulnerable to a motion to strike. By reference to paragraph V it will be observed that the fees there sought to be recovered are those incurred by plaintiff for the collection of the account for which the instant action was brought. In short, plaintiff thereby seeks to compel defendant to pay all costs of the litigation, including the reasonable value of plaintiff's attorney's fee.

The right to recover attorney's fees from an opponent in litigation does not exist at common law. The general rule is that such an item of expense is not allowable in the absence of a statute or some agreement expressly authorizing the allowance of attorney's fees in addition to the ordinary costs. 20 C.J.S. Costs § 218, p. 456; 14 Am.Jur. 38, Costs § 63.

This court has consistently adhered to that rule and has denied litigants a recovery from their adversaries of any part of their attorney's fees except the costs awarded by ORS 20.070. Kern v. Centner, 176 Or. 479, 486, 159 P.2d 190, 164 A.L.R. 1077; Garrett v. Hunt, 117 Or. 673, 676, 244 P. 82, 245 P. 321; State Land Board v. Sovenko, 202 Or. 571, 574, 277 P.2d 781.

If pl...