Fry v. Hubner

• Decision Date: 12 June 1899
• Citation: 57 P. 420,35 Or. 184
• Parties: FRY v. HUBNER.
• Court: Oregon Supreme Court

57 P. 420

35 Or. 184

FRY v. HUBNER.

Supreme Court of Oregon

June 12, 1899

Appeal from circuit court, Grant county; Morton D. Clifford, Judge.

Action of trespass, brought by T.L. Fry against Joseph Hubner. From a judgment in favor of defendant, plaintiff appealed. Affirmed.

This is an action of trespass, commenced in the justice's court for district No. 12, Grant county, Or. The complaint alleges in substance, that plaintiff is entitled to, and is in the possession of, certain real property described therein "that, on divers and sundry days and times between the 10th day of December, 1897, and the date of the commencement of this action defendant knowingly, willfully, wrongfully and unlawfully permitted his band of sheep to be herded, and knowingly, willfully, wrongfully, and unlawfully did herd and cause to be herded defendant's said band of sheep, upon the above-described real estate of the plaintiff, without the consent of plaintiff, and against plaintiff's will," to his damage in the sum of $200. The answer consists of specific denials of the allegations of the complaint. Judgment being for plaintiff, the defendant appealed, and upon trial in the circuit court plaintiff secured a verdict whereupon the defendant moved for a judgment in his favor, and that said cause be dismissed, notwithstanding the verdict, upon the ground that the justice's court had no jurisdiction of the cause, as appeared from the pleadings. The motion was allowed, and, judgment having been entered dismissing the action, and taxing the costs against the plaintiff, he has appealed to this court.

M. Dustin, for appellant.

WOLVERTON C.J. (after stating the facts).

It is objected here for the first time that the complaint does not state facts sufficient upon which to base a cause of action, and we are impressed that the objection is well taken. The question is one that may be raised at any stage of the proceedings, whether in the justice's circuit, or in this court, and hence, although the circuit court may have based its reasoning for the allowance of the motion for judgment notwithstanding the verdict upon the ground that the justice was without jurisdiction, yet, nevertheless, if the objection that the complaint does not state sufficient facts is well taken, it should be sustained. The case of Walker v. Bloomingcamp (Or.) 43 P. 175, is decisive of the controversy. The complaint in this instance is but little more explicit than in that case, and it was there held that the complaint was insufficient to support the action. The word "knowingly," and the expression "without the consent of plaintiff and against plaintiff's will," are used here in addition to the language employed in the case referred to;...