Klamath Development Co. v. Lewis

• Decision Date: 02 June 1931
• Parties: KLAMATH DEVELOPMENT CO. v. LEWIS.
• Court: Oregon Supreme Court

299 P. 705

136 Or. 445

KLAMATH DEVELOPMENT CO. v. LEWIS.

Supreme Court of Oregon

June 2, 1931

Department 1.

Appeal from Circuit Court, Klamath County; Orlando M. Corkins Judge.

Suit by the Klamath Development Company against L. Alva Lewis. Decree for plaintiff, and defendant appeals.

Affirmed.

On November 26, 1928, plaintiff instituted this suit by filing a complaint. Injunctive relief was sought restraining defendant from using the waters of a spring known as "The Devil's Teakettle."

On December 27, 1928, an order of default was entered stating that the defendant had been duly and regularly served with summons and had not answered within the legal time for answering.

On January 4, 1929, an order was entered dismissing plaintiff's complaint, in which order it is recited that the court finds that there is no equity in the complaint and that the complaint sets up no facts warranting injunctive relief.

The order of December 27, 1928, and that of January 4, 1929, were made by Honorable A. L. Leavitt, who was the judge of the court at that time.

On January 22, 1929, the plaintiff filed a motion to set aside the order made and entered on the 4th day of January 1929.

On the 1st day of February, 1929, an order was entered setting aside the order of January 4, 1929. This order was made by Honorable W. M. Duncan, who had succeeded Judge Leavitt as the judge of said court.

The basis for the order of February 1, 1929, was the fact that the summons filed in the cause, upon which return of service was made, had not been signed by the attorney for the plaintiff.

On February 13, 1929, plaintiff filed its first amended complaint.

On February 21, 1929, defendant filed a motion to strike parts of said amended complaint, which motion on March 5, 1929, was overruled.

On March 9, 1929, defendant filed a motion to set aside said order of February 1, 1929. This motion was supported by an affidavit of defendant to the effect that the purported copy of summons which was delivered to the defendant bore the name of plaintiff's attorney. On March 29, 1929, this motion was overruled.

On April 5, 1929, defendant filed a demurrer to plaintiff's first amended complaint based upon the grounds: That the court had no jurisdiction of the defendant, and no jurisdiction of the subject of the action or suit because the order of dismissal of January 4, 1929, had become and was final and binding; that said first amended complaint did not state facts sufficient to constitute a cause of action or suit; and that the suit had not been commenced within the time limited by the Code of Civil Procedure of Oregon.

On the 7th of October, 1929, the said demurrer to the first amended complaint was overruled.

On the 15th day of October, 1929, upon motion and application of defendant, an order was made extending the time within which defendant should answer plaintiff's first amended complaint.

On October 26, 1929, defendant filed an answer to plaintiff's first amended complaint, in which answer defendant pleaded the rendition of the order of January 4 1929, as estoppel; also alleged that, upon appropriate application therefor, defendant's predecessor in interest had been granted the right to appropriate the waters of the spring in suit, known as the "Devil's Teakettle," by the state engineer; and that said right had been transferred to defendant.

On October 29, 1929, plaintiff filed a reply, and on the same day defendant filed a demurrer thereto.

On February 6, 1930, an amended reply was filed by plaintiff.

On or about October 29, 1929 (as stated in the order of the court thereupon), defendant filed a demurrer to plaintiff's reply, which on February 4, 1930, was overruled.

On March 17, 1930, the cause was tried. Defendant participated in the trial, cross-examined witnesses, and among other things offered in evidence a certificate of water right issued by the state engineer to C. C. Lewis, and also a deed from C. C. Lewis and wife to defendant and wife.

After the trial of the cause the circuit court made and filed its findings of fact and conclusions of law and entered a decree declaring plaintiff to be the owner and entitled to the full uninterrupted, and exclusive enjoyment and use of the waters of the spring in suit commonly known and designated as the "Devil's Teakettle," and perpetually enjoining defendant his successors in interest, agents, and personal representatives from diverting, appropriating, or using in any maner whatsoever any of the waters of said spring.

Defendant appeals.

J. H. Carnahan, of Klamath Falls, for appellant.

James B. Bacon, of Klamath Falls (C. F. Stone, of Klamath Falls, on the brief), for respondent.

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

To the writer it is idle to discuss the question of the jurisdiction of the court over the person of the defendant when the order of January 4, 1929, was made dismissing the case. The court had jurisdiction of the subject-matter and without any jurisdiction of defendant had authority to enter an order of dismissal. The order of February 1, 1929,...