La Grande v. Portland Public Market & Cold Storage Co.

• Decision Date: 24 January 1911
• Citation: 58 Or. 126,113 P. 25
• Parties: LA GRANDE v. PORTLAND PUBLIC MARKET & COLD STORAGE CO. [d]
• Court: Oregon Supreme Court

113 P. 25

58 Or. 126

LA GRANDE v. PORTLAND PUBLIC MARKET & COLD STORAGE CO. ^[d]

Supreme Court of Oregon

January 24, 1911

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

Action by D. La Grande against the Portland Public Market & Cold Storage Company. From an order sustaining defendant's plea in abatement and allowing plaintiff to amend, defendant appeals. Appeal dismissed.

This is an action by D. La Grande against the Portland Public Market & Cold Storage Company, a private corporation, to recover the alleged reasonable value of work and labor, the complaint being in the usual form. A plea in abatement was interposed to the complaint, alleging that the cause of action stated did not accrue to plaintiff alone, but to him and G. Zanello and F. Zanello, doing business under the firm name of G Zanello & Son, who, although still living, are not joined as parties plaintiff; that about November 23, 1908, the defendant, as party of the first part, and G. Zanello and F Zanello, as a firm, and plaintiff, as parties of the second part, entered into a written contract to which the firm name was signed by J.J. Zanello, who was fully empowered so to do and that this agreement is the only one defendant ever made with plaintiff. The prayer of the plea is that the action be dismissed. A reply having put in issue the averments of the plea, the cause was tried without the intervention of a jury and after the evidence offered by each party was received, defendant's counsel moved for judgment, whereupon the court stated that if a joint contract was consummated its validity depended upon the power of J.J. Zanello to subscribe the firm name to the writing, which authority was substantiated by the testimony, thereby showing a nonjoinder of parties plaintiff; and directed that the plea in abatement be sustained, entitling defendant to its costs and disbursements. Findings of fact were made by the court as announced, and based thereon it was concluded as a matter of law, inter alia, that plaintiff should be allowed to file an amended complaint, to which determination an exception was taken by defendant's counsel, who requested findings of fact and of law which were denied. Predicated upon the findings and conclusions made, it was considered and ordered that the plea in abatement be sustained; that defendant recover its costs and disbursements; and that leave to file an amended complaint be granted, from which determination defendant appeals.

R.T. Platt, for appellant.

A.H. Tanner, for respondent.

MOORE J. (after stating the facts as above).

Insisting that the order undertaken to be reviewed is interlocutory, plaintiff's counsel moves to dismiss the appeal. It is maintained by defendant's counsel, however, that though the court's direction is not in form ultimate, it is in substance and effect a final determination of the cause as instituted, necessitating a dismissal of the action, in failing to render which an error was committed that is re-examinable by this court. Before the question thus suggested is determined, it is deemed proper to consider the form of judgment that should be rendered when a decision in favor of a defendant is given on a plea in abatement, and whether or not, after an issue of fact joined on the plea is decided in defendant's favor, the averments of a complaint thus challenged can over objection and exception be amended. Contemplating these inquiries in the order stated, the rule is well settled that when an issue of fact or law is joined on a plea in abatement and found for the defendant, the judgment or decree required to be given is that the action or suit be dismissed. 1 Chitty, Pl. *466; Gould, Pl. (Hamilton's Ed.) 286; 1 Tidd's Pr. (Am. notes) *642; 1 Enc.Pl. & Pr. 30; 31 Cyc. 187; Clark v. Latham, 25 Ark. 16; Larco v. Clements, 36 Cal. 132; Cushman v. Savage, 20 Ill. 330.

In justification of the action of the court in permitting the complaint to be amended, after an issue of fact joined on the plea was determined in defendant's favor, plaintiff's counsel contend that such a course of procedure is upheld by the decisions of courts of last resort in other states, to which attention is called, and that the correct rule to be extracted from the opinions in such cases is stated by a text-writer as follows: "If the matter of a proposed amendment to a complaint is proper, the pendency of a plea in abatement, the legal effect of which the amendment may obviate, is rather a reason for than an objection to its allowance." 1 Enc.P. & Pr. 591. The language thus quoted is in substance an excerpt from the opinion in the case of Foster v. Napier, 73 Ala. 595, 601, where pleas in abatement having challenged the sufficiency of a complaint, the plaintiff, over objection and exception, was permitted to amend his pleading in the particulars assailed. After the alteration was made, the defendant again filed pleas in abatement to which demurrers were interposed and overruled. The amendment in that case was evidently made without any issue either of law or fact having been joined on the first plea.

In Mohr v. Sherman, 25 Ark. 7, it was held that where a plaintiff sued in his individual capacity, but the summons required an answer to him "as administrator," etc., the variance justified the interposition of a plea in abatement, after filing which the declaration was amended by leave of court so as to make it correspond to the process, and it was held that the discretion thus exercised would not be reviewed. In that case it was said: "The plea in abatement (without issue) was then submitted to the court and overruled." It will be observed from the phrase in parenthesis that the plaintiff conceded the averments of the plea and thereupon amended the declaration.

In Powell v. Myers, 1 Barb. (N.Y.) 427, a plea in abatement having challenged a declaration because of the nonjoinder of a party defendant, the plaintiff amended his pleading by correcting the mistake pointed out, and it was ruled that the alteration was proper. In that case it does not appear that any issue was joined on the plea.

In Gilpin v. Ebert, 2 Colo. 23, the summons claimed damages in the sum of $2,300, while the declaration demanded indemnity to the extent of $5,000. The variance having been pointed out by a plea in abatement, the court permitted the declaration to be amended so as to harmonize with the writ, and it was determined that the alteration was permissible. In that case it does not appear that any issue was joined on the plea. To the same effect is the case of Morton's Adm'r v. Smith, 4 T.B. Mon. (Ky.) 313.

In Heslep v. Peters, 4 Ill. 45, a plea in abatement on the ground of misnomer was interposed to a petition. A demurrer to the plea was filed but withdrawn by leave of court, which permitted the misnomer to be corrected. This course was held proper. In that case it is manifest that the issue of law joined by the demurrer to the plea was removed.

In Blood v. Harrington, 8 Pick. (Mass.) 552, an action was commenced by a minor without joining any person who prosecuted for him. A plea in abatement having indicated plaintiff's infancy, he did not reply thereto, but was permitted to amend his pleading by inserting a statement, after his name, that he sued by his next friend, naming him, and it was ruled that the amendment was proper. It will be seen that no issue on the plea was joined in that case.

In Jacobs v. Cunningham, 32 Tex. 774, an action was commenced by a married woman who neither joined her husband in the complaint nor offered any reason therein to excuse her failure so to do. A plea in abatement called attention to the defect, whereupon the court permitted her pleading to be amended so as to allege that at the time her suit was commenced her husband was non compos mentis, which alteration was held proper. In deciding that case, Mr. Justice Lindsay says: "Upon a virtual confession of the truth of the plea, the plaintiff asked leave to amend, and in the amendment alleged the insanity of the husband." It is certain in that case that no issue was joined on the plea.

It will be seen from the cases here commented upon and which are cited to support the text quoted that each decision appears to be based on a practical confession of the averments of the respective pleas in abatement, and, no issue of law or fact having been joined as to the various pleas, amendments of the primary pleadings were allowed. The conclusions reached in the cases referred to do not controvert or even modify the rule governing the form of...