Kerschner v. Smith

• Decision Date: 17 May 1927
• Parties: KERSCHNER v. SMITH
• Court: Oregon Supreme Court

256 P. 195

121 Or. 469

KERSCHNER v. SMITH

Supreme Court of Oregon

May 17, 1927

Appeal from Circuit Court, Multnomah County; George Rossman, Judge.

Action by E.F. Kerschner against J.L. Smith. Judgment for plaintiff and defendant appeals. Affirmed.

See also, 236 P. 272.

This is an appeal from a default judgment rendered upon a complaint based upon fraud. From the record it appears that, between January and August, 1924, plaintiff and one Edward L. Brown as partners, conducted a rooming house in the city of Portland, Ore.; that plaintiff was the owner of an undivided one-half interest in the furniture therein, which interest was of the value of $1,000, and that she also owned a leasehold interest in the premises; that J.L. Smith defendant herein, was the owner of a $2,300 mortgage on certain personal property, which mortgage was subject to a prior mortgage for $3,000, and that the value of the personal property was not greater than the amount of the first mortgage thereon. It is averred and established that Edward L. Brown and defendant, Smith, conceived and fraudulently designed a scheme, whereby defendant obtained the plaintiff's interest in the rooming house, including her leasehold thereof, in consideration of the assignment to her of the Smith mortgage; that they knowingly and fraudulently represented and pretended to the plaintiff that defendant's chattel mortgage for $2,300 was a good and valid mortgage, well secured, and of the value of $2,300, whereas, in truth, by reason of the prior mortgage upon the security, his mortgage had no value.

H.F. McInturff, of Portland (C.W. Robison, of Astoria, on the brief), for appellant.

Louis V. Lundburg, of Portland (B.A. Green, of Portland, on the brief), for respondent.

BROWN, J. (after stating the facts as above).

A judgment for want of an answer, after due and lawful service of complaint and summons, admits the truth of all the material allegations of the complaint. Philbrick v O'Connor, 15 Or. 15, 19, 13 P. 612, 3 Am.St.Rep. 139.

There is no contention in this case but what the process summoning the defendant to answer was strictly regular and according to law, and that the court possessed the necessary jurisdiction of the cause and of the parties litigant to authorize the entry of a default judgment. It is contended, however, that the decree of the court grants relief beyond that prayed for in plaintiff's complaint. The complaint prayed for a decree as follows:

"(1) That the defendant herein reconvey and transfer to plaintiff an undivided one-half interest in said personal property and lease, or, in lieu thereof, that the said personal property be sold and plaintiff receive from the proceeds thereof such an amount of money as the court might find from the evidence that the equity of the case should warrant.

"(2) That the defendant J.L. Smith be restrained by injunction from disposing of *** said property. ***

"(3) That the plaintiff have such other and further relief as may be just and equitable, together with her costs and disbursements incurred herein."

Prior to the service of any writ of injunction, the defendant had disposed of the property, and the court decreed that the plaintiff have judgment against defendant for the sum of $1,000, the value thereof. Thereafter, based upon the decree, and after an execution had issued, defendant filed a motion to vacate that part of the judgment relating to the payment of money by defendant to plaintiff, for an order quashing the writ of arrest, and for the release of defendant.

No appeal lies from a valid...