Elliott v. Mosgrove

• Decision Date: 19 September 1939
• Citation: 162 Or. 507,93 P.2d 1070
• Parties: ELLIOTT v. MOSGROVE et al.
• Court: Oregon Supreme Court

93 P.2d 1070

162 Or. 507

ELLIOTT v. MOSGROVE et al.

Supreme Court of Oregon

September 19, 1939

Appeal from Circuit Court, Umatilla County; Calvin L. Sweek, Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 91 P.2d 852.

C. Z. Randall, of Pendleton (Randall & Perry, of Pendleton, on the brief), for appellants.

Homer I. Watts, of Athena, and John F. Kilkenny, of Pendleton (Raley, Kilkenny & Raley, of Pendleton, on the brief), for respondent.

ROSSMAN, Justice.

The defendants have filed a petition for a rehearing accompanied by comprehensive briefs. We shall first consider the criticisms which they make of the statement of facts contained in our opinion.

Our decision, referring to the estate of Matt Mosgrove, deceased says: "The inventory and appraisement of the latter indicated a value of $69,108.59. Its indebtedness aggregated $20,021.16, leaving a net worth of $49,087.43. Out of the latter $8,000 was drawn with which the trust bequeathed by Matt in behalf of Charles's children was established." The briefs accompanying the petition for a rehearing, after quoting the sentence which we have just repeated, states concerning it: "There is no word of evidence in the record to justify the statement by the Court in its opinion, and it results in a reflection upon a man now dead, and an outright injustice to his memory." We fail to understand how such conduct upon the part of Thomas could reflect unfavorably upon him. It will be recalled that Thomas was the son of Matt and the nephew of the deceased William with whom we are primarily concerned. Matt's will, after bequeathing $8,000 in trust for the benefit of the children of his brother Charles, nominated Thomas as executor and provided that he should invest this $8,000 fund and hold the purchased items in trust for Charles's children. Thomas made the investment by purchasing some Canadian land. It is true, as the defendants argue, that Thomas's widow testified that her husband purchased the land with his own funds, but she is a partisan and, as shown in our previous decision, her information concerning her husband's financial transactions, although avowed by her to be complete, was only partial. The following facts, we believe indicate that the statement quoted above is supported by substantial evidence: Matt died in January, 1926. March 5 1929, Thomas signed a Declaration of Trust from which we now quote:

"Whereas Matt Mosgrove, of Milton, Umatilla County, Oregon, by his last will and testament gave and devised unto his son, Thomas H. Mosgrove, the executor named in his will, in trust, the sum of $8,000.00, and by his said will directed his trustee to invest the same ***

"And whereas I, Thomas H. Mosgrove, the executor and trustee named in the will of Matt Mosgrove, have pursuant to the direction therein contained and as hereinbefore set out invested the sum of $8,000.00 by purchasing the following land **

"And whereas I made the said purchase and made the said investment in compliance with and pursuant to the will of the late Matt Mosgrove as in part hereinbefore recited ***

"Now therefore this agreement and declaration witnesseth that in consideration of the premises and pursuant to the will of the late Matt Mosgrove, I hereby agree and declare that the land and premises *** is held by me in trust for *** according to the terms of the will of the late Matt Mosgrove, and I do stand seized and possessed of the said land and premises in trust for them, and subject to the terms of the said will and will pay the income derived therefrom *** and otherwise dispose of the same in such manner as the said Matt Mosgrove in his will directed, and will hold the same in trust pursuant to the said will ***."

The only other criticism which the defendants make of our statement of the contents of the record is to direct attention to the fact that the prayer which concludes the complaint does not directly employ the term "an accounting." Our previous decision stated: "The prayer was inclusive and among other things asked for *** an accounting." It is true that the term "an accounting" is not found in the prayer, but we believe that the prayer, which is lengthy, is reasonably susceptible to the interpretation that the plaintiff sought an accounting. She could not have been awarded the relief suggested by the facts narrated in her complaint unless an accounting was first had. Further, the prayer asked "for such other and further relief as to a court of equity may seem meet and ***." It is well established that the prayer is no part of the cause of suit or of action, and that ordinarily a party is entitled against answering defendants to any relief warranted by the facts set up in his complaint. This is especially true when the prayer, like plaintiff's, seeks general relief. We do not believe that our statement of the facts is erroneous.

The defendants argue again that the circuit court improperly permitted the plaintiff to make the amendment to her complaint which we set forth in our decision. Concerning our decision, they say: "In this portion of the opinion the Court does not pass upon the question of whether or not the amendment changed the cause of action." It will be recalled that the amendment was made after both sides had rested, but that the order authorizing it added: "Ordered that this cause be continued to permit the defendants to introduce any additional testimony they may desire to offer." Following the amendment the defendants excepted but offered no evidence.

Section 1-906, Oregon Code 1930, which is the part of our laws which governs this issue, grants to trial judges a discretionary power to permit amendments before a cause is submitted, provided the amendment "does not substantially change the cause of action." The term "cause of action" employed in this section is the piece de resistance which has caused the trouble in the application of this section of our laws. In the stretching, hauling, pulling and contracting to which this phrase has been subjected it has made its way into the group of terms which lacks unity of signification. For a review of many of the definitions which have been placed upon this term, see United States v. Memphis Cotton Oil Co., 288 U.S. 62, 53 S.Ct. 278, 77 L.Ed. 619; East Side Mill Co. v. Southeast Portland Lumber Co., 155 Or. 367, 64 P.2d 625; The Code "Cause of Action", Clark, 33 Yale Law Journal 817; Actions and Causes of Action, McCaskill, 34 Yale Law Journal 614; and The Code "Cause of Action" Clarified by United States Supreme Court, Arnold, 19 A.B.A.Journal 215. Mr. Justice Cardozo, taking a practical attitude toward the term, in United States v. Memphis Cotton Oil Co., supra, says [288 U.S. 62, 53 S.Ct. 280, 77 L.Ed. 619]: "It may mean one thing when the question is whether it is good upon demurrer, and something different when there is a question of the amendment of a pleading or of the application of the principle of res judicata." He goes on with an enumeration of other phases of the term, but we are concerned with only one application of the term, that is, its meaning in our statute governing amendments which do not substantially change the cause of action.

Judge Clark, who at the time he wrote his article was an instructor in the Yale School of Law, but who subsequently became author of Clark on Code Pleading, reporter of the Advisory Committee on Rules of Civil Procedure appointed by the United States Supreme Court, and still later Judge of the Federal Circuit Court, in his above-cited article, commends highly the following analysis of the term "cause of action" given in Phillips, Code Pleading, § 30: "The question to be determined at the threshold of every action is, whether there is occasion for the state to interfere. Therefore, when a suitor asks that the public force be exerted in his behalf, he must show that there is, prima facie, occasion for the state to act in his behalf. That is, he must show a right in himself, recognized by law, and a wrongful invasion thereof, actual or threatened. And since both rights and delicts arise from operative facts, he must affirm of himself such investitive fact or group of facts as will show a consequent legal right in him, and he must affirm of the adversary party such culpatory fact or facts as will show his delict with reference to the right so asserted. The formal statement of operative facts showing such right and such delict shows a cause for action on the part of the state and in behalf of the complainant, and is called, in legal phraseology, a cause of action. " Judge Clark expresses his own conception of the meaning of the term in the following words: "The cause of action under the code should be viewed as an aggregate of operative facts which give rise to one or more relations of right-duty between two or more persons. The size of such aggregate should be worked out in each case pragmatically with an idea of securing convenient and efficient dispatch of trial business." He suggests: "It seems that a single cause may give rise to innumerable rights. And the extent of our cause and the number of persons it may affect must be determined having in mind our main purpose, above referred to-convenient, efficient trial work. So our cause should be as extensive a history as we can conveniently and efficiently handle as a single unit, and without injury to substantive rights."

In his volume on code pleading, Judge Clark, in stating his conception of a cause of action under the codes, points out "The number of such facts to be considered as a single unit will vary in different cases, but should be governed by reasons of practical convenience, and a change in such facts should not be a change in the cause of action so long as the...