Hopka v. Forbes

• Decision Date: 09 December 1930
• Citation: 294 P. 342,135 Or. 91
• Parties: HOPKA v. FORBES. [a1]
• Court: Oregon Supreme Court

294 P. 342

135 Or. 91

HOPKA v. FORBES. ^[a1]

Supreme Court of Oregon

December 9, 1930

Department 1.

Appeal from Circuit Court, Klamath County; W. M. Duncan, Judge.

Action by W. F. Hopka against Frederick C. Forbes, in which the defendant filed a cross-complaint. From an adverse decree the defendant appeals.

Modified and, as modified, affirmed.

John Irwin and J. C. O'Neill, both of Klamath Falls (O'Neill & Irwin, of Klamath Falls, on the brief) for appellant.

J. H Carnahan, of Klamath Falls (Fred D. Fletcher, of Klamath Falls, on the brief), for respondent.

RAND J.

On January 14, 1925, plaintiff leased to defendant a certain storeroom in Klamath Falls for a term of five years. The lease contained no provision for an extension of the term at the tenant's option. It contained, however, a provision reading as follows: "3. At least thirty (30) days before the expiration of the term of the lease the lessee shall give the lessor written notice of an intention to surrender said premises at the expiration of such term and if such notice be not given, the lessee shall be liable for an additional monthly installment of rent at the same rate as for the last month of the term."

The lessee failed to give notice in accordance with the above provision, but continued to occupy the premises and tendered as rental for the month next following the expiration of the term a check for the sum of $200, that being the amount of the rental which had been paid for the last preceding month. The lessor refused to accept the check, but made no objection to the form of the tender, and thereafter, on January 21, 1930, commenced an action against defendant of forcible entry and detainer in the circuit court to recover possession of the premises. Defendant filed an answer to the complaint in the action, in which he admitted plaintiff's ownership of the premises and defendant's possession thereof, and denied generally all other allegations of the complaint. On the same day he filed in said court a pleading denominated a cross-bill, in which he attempted to set up an equitable defense to said action. The defendant in the cross-complaint, plaintiff herein, answered, setting up an affirmative defense to which the defendant herein replied. The cause was then tried on the cross-complaint, answer, and reply, and plaintiff herein had decree, and defendant appealed.

The filing of a cross-bill by a defendant in a law action, interposing an equitable defense to the action, is no longer permissible under our Code. By chapter 95, L. 1917, cross-bills were especially abolished and the procedure existing prior thereto was very much simplified by the amended statute, as now provided by section 6-102, Oregon Code, 1930, formerly section 390, Or. L.: "* * * In an action at law where the defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material to his defense, he may set such matter up by answer, without the necessity of filing a complaint on the equity side of the court; and the plaintiff may, by reply, set up equitable matter, not inconsistent with the complaint and constituting a defense to new matter in the answer. Said reply may be filed to an answer containing either legal or equitable defenses. The parties shall have the same rights in such case as if an original bill embodying the defense or seeking the relief prayed for in such answer or reply had been filed. Equitable relief respecting the subject matter of the suit may thus be obtained by answer, and equitable defenses to new matter contained in the answer may thus be asserted by reply. When such an equitable matter is interposed, the proceedings at law shall be stayed and the case shall thereafter proceed until the determination of the issues thus raised as a suit in equity by which the proceedings at law may be perpetually enjoined or allowed to proceed in accordance with the final decree; or such equitable relief as is proper may be given to either party. If, after determining the equities, as interposed by answer or reply, the case is allowed to proceed at law, the pleadings containing the equitable matter shall be considered withdrawn from the case, and the court shall allow such pleadings in the law action as are now provided for in actions of law. No cause shall be dismissed for having been brought on the wrong side of the court. The plaintiff shall have a right to amend his pleadings to obviate any objection on that account. * * *"

The case, however, was tried in the court below as if the procedure followed were proper and no objection thereto was urged by plaintiff. For that reason, we will treat the case as if the procedure provided by statute had been followed.

The first point...