Hume v. Woodruff

• Decision Date: 19 November 1894
• Citation: 38 P. 191,26 Or. 373
• Parties: HUME v. WOODRUFF et al.
• Court: Oregon Supreme Court

38 P. 191

26 Or. 373

HUME v. WOODRUFF et al.

Supreme Court of Oregon

November 19, 1894

Appeal from circuit court, Curry county; J.C. Fullerton, Judge.

Action by R.D. Hume against C. Woodruff and others to enjoin defendants from interfering with plaintiff's use of a certain fishery. From a judgment dismissing the complaint plaintiff appeals. Reversed.

S.H. Hazard, for appellant.

W.R. Willis and Warren Gregory, for respondents.

BEAN C.J.

This is a suit to enjoin and restrain the defendants from interfering with what plaintiff claims and alleges to be a private fishery in Rogue river. A demurrer to the complaint, because it did not state facts sufficient to constitute a cause of suit, being sustained, with leave to amend, the plaintiff filed an amended complaint, and at the same time a motion for a voluntary nonsuit. This motion was denied by the court, and the amended complaint, on motion of the defendants, stricken from the files, because it was sham frivolous, and irrelevant. Plaintiff refusing to plead further, a decree was entered dismissing the suit, and for costs, from which he appeals.

The only question presented for our determination is whether the plaintiff was entitled to a voluntary nonsuit. By section 402 of 1 Hill's Annotated Laws, a decree dismissing a suit may be given against the plaintiff in any of the cases specified in subdivisions 1, 2, and 3 of section 246, except the last clause of subdivision 3. By subdivision 1, referred to, a plaintiff is entitled to a voluntary nonsuit at any time before trial, unless a counterclaim has been pleaded as a defense. Under our statute a "trial" is defined to be "the judicial examination of the issues between the parties." Section 177. Issues are of two kinds: First, of law second, of fact. Section 173. An issue of law arises upon a demurrer (section 174); and, since a defendant may demur upon the ground "that the complaint does not state facts sufficient to constitute a cause of suit" (sections 67 and 389), it would seem to follow that the trial of an issue presented by such a demurrer is a trial of the cause, within the meaning of the statute ( Alley v. Nott, 111 U.S 472, 4 Sup.Ct. 495), and, as a consequence, that after the disposition thereof a plaintiff is not entitled to a voluntary nonsuit, unless, by leave of the court, an amended complaint is filed. If, however, he is allowed to amend, and does so, the original complaint and the demurrer thereto cease to be a part of the record for the purposes of the trial, and the cause stands for hearing or trial on the amended complaint, the same as if no other had been filed. Wells v. Applegate, 12 Or. 208, 6 P. 770; Hexter v. Schneider, 14 Or. 184, 12 P. 668. In such a case, it seems to us, a plaintiff would be entitled, as a matter...