Harris v. Harris

• Decision Date: 23 August 1967
• Citation: 247 Or. 479,430 P.2d 993
• Parties: Joelia Jersey HARRIS, Respondent, v. James Malcolm HARRIS, Appellant.
• Court: Oregon Supreme Court

Page 993

430 P.2d 993

247 Or. 479

Joelia Jersey HARRIS, Respondent, v. James Malcolm HARRIS, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted July 13, 1967.

Decided Aug. 23, 1967.

DeMar Batchelor, Hillsboro, argued the cause for appellant. With him on the brief were Schwenn, Bradley & Batchelor, Hillsboro.

Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Reiter, Day & Wall, and Carlton R. Reiter, Portland.

Before PERRY, C.J., and SLOAN, GOODWIN, DENECKE and LUSK, JJ.

SLOAN, Justice.

During the course of this divorce proceeding, defendant's deposition was taken. The deposition was recessed to require defendant to produce income tax and business records. Before the deposition could be continued, defendant took the two children of the parties and fled to Mississippi. He has refused to return to Oregon. Thereafter the court entered an order requiring him to appear for completion of the deposition on a day certain. The order was properly served on defendant. The order also provided that defendant's pleadings would be stricken if he failed to appear. ORS 45.190. ¹ When defendant failed to appear the court did strike his pleadings and proceeded to hear the case as a default proceeding. Defendant's attorney appeared at the default hearing and asked leave to cross-examine plaintiff. The court refused to allow it. Defendant appeals claiming that his property was taken without the due process guaranteed by the Oregon Constitution, Art. I, § 10, and by the Fourteenth Amendment to the Federal Constitution.

The question has been answered by the United States Supreme Court in Societe Internationale Pour Participations, etc. v. Rogers, 1958, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255. The court, in passing upon a default judgment that had been entered pursuant to Rule 37 ² of the Federal Rules of Civil Procedures made this analysis of the significant cases:

'The provisions of Rule 37 which are here involved must be read in light of the provisions of the Fifth Amendment that no person shall be deprived of property without due process of law, and more particularly against the opinions of this Court in Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, and Hammond Packing Co. v. State of Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (15 Ann.Cas. 645). The decisions establish that there are constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause. The authors of Rule 37 were well aware of these constitutional considerations. See Notes of Advisory Committee on Rules, Rule 37, 28 U.S.C. (1952 ed.) p. 4325, 28 U.S.C.A.

'In Hovey v. Elliott (U.S.) supra, it was held that due process was denied a defendant whose answer was struck, thereby leading to a decree pro confesso without a hearing on the merits, because of his refusal to obey a court order pertinent to the suit. This holding was substantially modified by Hammond Packing Co. v. State of Arkansas (U.S.), supra, where the Court ruled that a state court, consistently with the Due Process Clause of the Fourteenth Amendment, could strike the answer of and render a default judgment against a defendant who refused to procuce documents in accordance with a pretrial order. The Hovey case was distinguished on grounds that the defendant there was denied his right to defend 'as a mere punishment'; due process was found preserved in Hammond on the reasoning that the State simply utilized a permissible presumption that the refusal to produce material evidence '* * * was but an admission of the want of merit in the asserted defense.' 212 U.S. at pages 350--351, 29 S.Ct. at page 380. But the Court took care to emphasize that the defendant had not been penalized '* * * for a failure to do that which it may not have been in its power to do.' All the State had required 'was a bona fide effort to comply with an order * * *, and therefore any reasonable showing of an inability to comply would have satisfied the requirements * * *' of the order. 212 U.S. at page 347, 29 S.Ct. at page 378.'

The Court held:

'In view of the findings in this case, the position in which petitioner stands in this litigation, and the serious constitutional questions we have noted, we think that Rule 37 should not be construed to authorize dismissal of this complaint because of petitioner's noncompliance with a pretrial production order when it has been established that failure to comply has been due to inability, and not to willfulness, bad faith, or any fault of petitioner. (*Footnote omitted).

There is no question in the instant case of defendant's bad faith in refusing to comply with the statute and the court's order.

Hutchinson v. Hutchinson, 1928, 126 Or. 519, 270 P. 484, 62 A.L.R. 660, appears to sustain defendant's argument. However, the Hutchinson case was decided solely on the basis of Hovey v. Ellis, 1897, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, without any reference to the modifying decision of Hammond Packing Co. v. State of Arkansas, 1909, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530, 15 Ann.Cas. 645. In view of the Societe Internationale case, Hutchinson v. Hutchinson, su...