Kulisch v. Stewart

• Decision Date: 21 September 1937
• Citation: 71 P.2d 796,157 Or. 382
• Parties: KULISCH v. STEWART. [*]
• Court: Oregon Supreme Court

71 P.2d 796

157 Or. 382

KULISCH v. STEWART. ^[*]

Supreme Court of Oregon

September 21, 1937

In Banc.

Appeal from Circuit Court, Multnomah County; Carl Hendricks, Judge.

Action by Della Kulisch against August Kulisch. Judgment for plaintiff, and defendant appealed. After appeal was perfected, defendant died, and Clara M. Stewart, executrix of his estate, was substituted for him.

Affirmed.

J LeRoy Smith, of Portland, for appellant.

Ira W Carl, of Portland (W. L. Tooze, of Portland, on the brief) for respondent.

BAILEY, Justice.

This action was instituted by plaintiff in the district court of Multnomah county to recover from the defendant, August Kulisch, the sum of $420, for board and lodging furnished by the plaintiff to that defendant under an agreement between the parties. From a judgment in favor of the plaintiff rendered upon the verdict of a jury, the defendant appealed to the circuit court, where the case was tried before the court without a jury and judgment for the full amount recovered, from which judgment the defendant appealed to this court. After the appeal was perfected, August Kulisch died and Clara M. Stewart, executrix of his estate was substituted for him.

On May 18, 1936, in compliance with the decision of the court proposed findings of fact and a proposed judgment were served by plaintiff upon counsel for the defendant, which findings and judgment were signed by the judge under date of June 1 of that year and filed with the clerk of the court on June 4. On June 2 the defendant served on opposing counsel and filed with the clerk a motion to be permitted to make a slight amendment in his answer, and further filed a motion for permission to reopen the case and introduce the answer of the present plaintiff and her husband, filed in a suit to foreclose a mortgage given by them to the defendant. The record does not disclose whether those motions were ever called to the attention of the trial judge, or what action, if any, was taken on said motions.

The appellant has failed to file with this court a bill of exceptions or transcript of any testimony taken before the trial judge. The first question for consideration, therefore is whether or not the complaint states a cause of action. We should not term that pleading a model to be followed. No motion was filed to make it more definite and certain, nor was it tested by demurrer in either of the lower courts. So far as the record shows, no objection was made to the introduction of testimony on the ground that it failed to state a cause of action. It is apparent, moreover, that the appellant understood the plaintiff's grievance,...