Evans v. Marvin

• Decision Date: 18 May 1915
• Citation: 76 Or. 540,148 P. 1119
• Parties: EVANS v. MARVIN ET AL.
• Court: Oregon Supreme Court

148 P. 1119

76 Or. 540

EVANS v. MARVIN ET AL.

Supreme Court of Oregon

May 18, 1915

On Petition for Rehearing, June 22, 1915.

On Petition for Rehearing.

In Banc.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Action by Charles F. Evans against Edgar Marvin and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Plaintiff alleging himself to be the owner in fee simple and in the actual possession of certain real property ever since July 22, 1910, states that on March 15, 1913, the defendants Stephenson & Hitt caused an execution to be issued out of the circuit court, under the seal thereof, in favor of themselves and against one Carpenter; that, the same having been placed in the hands of defendant Marvin, as sheriff, he sold the property to Stephenson and Hitt, and issued a certificate of sale thereof, which sale was afterward confirmed by the court; and that they threaten to issue a deed in pursuance of said sale. He further asserts:

"Stephenson and Hitt have no right, title, claim, or interest in and to said premises, or any part thereof, and that said plaintiff is the bona fide owner in fee simple of said premises and the whole thereof; that the issuance of such deed would create a cloud upon plaintiff's title, to his irreparable injury and damage to his title."

The prayer of the initial pleading is to the effect that the court annul all proceedings under the execution, perpetually enjoin the defendants from further proceeding in the premises, and that the plaintiff be declared the owner in fee thereof, free from all claims of the defendants, or of either of them. The answer admits the issuance of the execution and proceedings in pursuance thereof, but denies all other allegations of the complaint. Affirmatively it states:

"That on the 5th day of March, 1903, an action was commenced in the justice court for the district of Lostine, in Wallowa county, Oregon, by the defendants herein, the said Bart Stephenson and the said F. M. Hitt, as plaintiffs in said action, against one A. J. Carpenter, as defendant in said action, and that said action was commenced by the filing of a complaint therein and issuing a summons therefrom, and that in said action in said justice court a judgment was duly given, made, and entered on the 16th day of March 1903, in favor of said Bart Stephenson and said F. M. Hitt as plaintiffs, in said action, and against the said A. J Carpenter, in the sum of ninety-four and 60/100 dollars ($94.60), and the further sum of ten dollars attorney's fees, and the costs and disbursements of said action taxed and allowed at $8.75; that on the 19th day of March, 1903 a certified transcript of said judgment, together with a certified copy of the docket entries made by the justice of the peace of said Lostine district in said action, was filed with the county clerk of Wallowa county, in the state of Oregon; and on said 19th day of March, 1903, said county clerk docketed and entered said judgment in the judgment docket of the circuit court of the state of Oregon for Wallowa county, and that on or about the 11th day of March, 1913, the said Stephenson and Hitt caused and procured a renewal of said judgment to be made by said circuit court, and a new entry thereof to be made in said judgment docket of said circuit court."

The defendants' pleading further goes on to narrate the history of an attempted foreclosure of a mortgage in favor of the Wallowa Mercantile Company, antedating the supposed lien of the justice's judgment, and points out certain alleged defects in said foreclosure which they claim rendered the same void as to the answering defendants here. The prayer of the answer is that the suit be dismissed. The reply denies the allegations respecting the rendition of the judgment in the justice's court, avers in its own way the proceedings under the foreclosure already mentioned, and alleges other matters not necessary to be considered. From a decree substantially according to the prayer of the complaint the defendants appealed.

Thos. M. Dill, of Enterprise, for appellants. O. M. Corkins, of Enterprise, for respondent.

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

It is contended by the defendants that this is a suit to remove a cloud from the title of the plaintiff, and that the facts stated in the complaint are not sufficient to authorize the granting of such relief. They argue that it is incumbent upon the plaintiff in such a suit, not only to state the nature of the alleged cloud, but to show wherein the claim by virtue thereof is void. Conceding this to be a correct statement of the rule, and applying it to the plaintiff's declaration, we find that the defendants have attempted to sell his land for the debt of another. Reduced to its lowest terms, this cannot be done lawfully, and the statement itself shows the reason why the resulting cloud would be null as a basis of title.

The plaintiff's allegation of ownership of the realty mentioned having been denied, it was incumbent upon him to prove the averment. We find exemplified in the record a homestead patent for the land from the United States to Alfred J. Carpenter, recorded June 29, 1901, a deed from Carpenter and wife to the Wallowa Mercantile Company on January 2, 1906, covering the same premises, a sheriff's deed purporting to be the result of a mortgage foreclosure conveying the land to the Wallowa Mercantile Company on January 21, 1908, and, lastly, a deed from the Wallowa Mercantile Company to the plaintiff, of date July 22, 1910, transferring to him the title to the realty in question. If nothing else were shown, these conveyances operate to vest the title in fee simple in the plaintiff, and constitute at least prima facie proof of the allegations of his complaint. It was incumbent upon the defendants, therefore, to establish their own case. In other words, they were compelled to prove the judgment of the justice's court upon which they rely as authority for their execution and sale of which plaintiff complains.

It is said in section 87, L. O. L.:

"In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction."

According to Ashley v. Pick, 53 Or. 410, 100 P. 1103. overruling earlier cases on the matter of pleading, we find that the answer of the defendant properly avers the rendition of the judgment in the justice's court when it states that the "judgment was duly given, made and entered." None of the decisions, however, dispense with the necessity of proving the facts conferring power on an inferior court when its determination is challenged. The authority of a justice's court is thus defined in section 951, L. O. L.:

"A justice's court has jurisdiction, but not exclusive, of the following actions: (1) For the recovery of money or damages only, when the amount claimed does not exceed $250; (2) for the recovery of specific personal property, when the value of the property claimed and the damages for the detention do not exceed $250; (3) for the recovery of any penalty or forfeiture, whether given by statute or arising out of contract, not exceeding $250; (4) also, to give judgment without action, upon the confession of the defendant for any of the causes specified in this section, except for a penalty or forfeiture imposed by statute."

This excerpt is qualified by section 952 in these words:

"The jurisdiction conferred by the last section does not extend, however, (1) to an action in which the title to real property shall come in question; (2) to an action for false imprisonment, libel, slander, malicious prosecution, criminal conversation, seduction, or upon a promise to marry."

Other restrictions on actions to recover a penalty or forfeiture given by statute are prescribed by section 953. As said by Mr. Justice Moore in Ferguson v. Byers, 40 Or. 468, 67 P. 1115, 69 P. 32:

"A court's jurisdiction of the subject-matter of an action is determined, in the first instance, from an inspection of the allegations of a complaint."

The only evidence offered by the defendants in support of their allegations of a duly given judgment of the justice's court was the exemplification of the journal of that court, which is here set down:

"State of Oregon, County of Wallowa--ss.:

"Proceedings in Justice Court, before J. F.

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