Holton v. Holton

• Decision Date: 28 January 1913
• Citation: 129 P. 532,64 Or. 290
• Parties: HOLTON v. HOLTON.
• Court: Oregon Supreme Court

129 P. 532

64 Or. 290

HOLTON v. HOLTON.

Supreme Court of Oregon

January 28, 1913

Appeal from Circuit Court, Washington County; J.U. Campbell, Judge.

Action by Frank Holton against Josephine Holton. From an order amending the complaint after a decree for plaintiff defendant appeals. Reversed.

The parties to this suit were married January 4, 1906, at Vancouver, in the state of Washington. On February 3, 1910 the husband as plaintiff filed in the circuit court of Washington county, Or., a complaint for divorce, in which he alleged "that the defendant now is and for more than one year last past has been a resident, inhabitant, and domiciled within the state of Oregon, and that such residence and inhabitancy has been actual, continuous, and bona fide," but said nothing whatever about his own residence. On February 24, 1910, an attorney in the employ and pay of the plaintiff, but authorized by the defendant, entered an appearance for the wife consenting that the suit go to trial without further notice, and waiving all right to plead or be heard therein. On the same day testimony was taken and reported by a referee and a decree of divorce rendered in favor of plaintiff so far as the court might lawfully adjudicate the matter. The findings of fact upon which the decree was based followed the very words of the complaint in respect to the residence of the parties. On May 15, 1911 almost 15 months after the rendition of the decree, the plaintiff applied to the circuit court to correct the complaint so as to change the word "defendant" to "plaintiff" in order to show that the latter instead of the former, had resided in the state for more than one year prior to the commencement of this suit, and to change the findings of fact in the same manner. The defendant appeared specially by different counsel of her own choosing to resist the motion. Disregarding the retainer and appearance of other counsel, the attorney engaged by the plaintiff to represent the defendant at the beginning of the suit appeared and consented to the allowance of the motion to correct the complaint and findings. Overruling the objections of the defendant urged by her counsel under her special appearance the court on May 15, 1911, entered nunc pro tunc as of February 24, 1910, an order allowing the motion and making the alterations desired. From this order the defendant appeals.

I.N. Smith, of Portland (John F. Logan, of Portland, on the brief), for appellant.

John C. Shillock and Dan J. Malarkey, both of Portland (O'Day & Haddock, of Portland, on the brief), for respondent.

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

It is first necessary to dispose of a motion filed by the plaintiff to dismiss this appeal on the grounds that notice is insufficient, in that it does not designate the court to which the appeal is taken, nor sufficiently describe or identify the decree appealed from, and that it appears from the transcript that no decree was rendered on May 15, 1911. Further reasons are specified, but they are only elaborations of those mentioned. The notice, besides containing the title of the court and cause and direction to the plaintiff and his attorney, naming him, reads as follows: "You and each of you are hereby notified that the defendant, Josephine Holton, has this day appealed from that certain decree entered against this defendant on the 15th day of May, 1911, by Judge J.U. Campbell, in the county of Washington, state of Oregon, and has appealed from the decree and the whole thereof." This notice was signed by the attorneys for defendant, service thereof accepted by the attorney for the plaintiff, November 14, 1911, and was filed the next day. The undertaking on appeal after the same title of court and cause contains this preamble: "Whereas the defendant in the above-entitled circuit court appeals to the Supreme Court of the state of Oregon from an order made and entered against the defendant in the said cause in said circuit court in favor of the plaintiff in the said cause and against the defendant on the 15th day of May, A.D.1911, for an order attempting to correct the complaint, findings of fact, conclusions of law, and the decree, now therefore," etc. Then follows the usual form of undertaking on appeal. "The undertaking on appeal may be examined in order to identify the judgment or the decree sought to be reviewed." Moorhouse v. Donica, 13 Or. 435, 11 P. 71; Salem Traction Co. v. Anson, 41 Or. 562, 67 P. 1015, 69 P. 675; Keady v. United Rys. Co., 57 Or. 325, 100 P. 658, 108 P. 197. Taking the notice and the undertaking together, we are convinced that there was sufficient data in the hands of the plaintiff to identify fully the proceeding of the circuit court to which objection is made and to disclose the tribunal to which the appeal is taken.

The plaintiff urges that the...