Lewis v. Siegman

• Decision Date: 14 April 1931
• Citation: 297 P. 1118,135 Or. 660
• Parties: OLIVE M. LEWIS, AS ADMINISTRATRIX OF THE ESTATE OF MARY H. PITZER, DECEASED, RESPONDENT, v. MARY SIEGMAN, AS ADMINISTRATRIX OF THE ESTATE OF ANTONE FOGLE, DECEASED, APPELLANT.
• Court: Oregon Supreme Court

297 P. 1118

135 Or. 660

OLIVE M. LEWIS, AS ADMINISTRATRIX OF THE ESTATE OF MARY H. PITZER, DECEASED, RESPONDENT, v. MARY SIEGMAN, AS ADMINISTRATRIX OF THE ESTATE OF ANTONE FOGLE, DECEASED, APPELLANT.

Supreme Court of Oregon

April 14, 1931

Department 1.

Appeal from Circuit Court, Jefferson County; T. E. J. Duffy, Judge.

On petition for rehearing.

For former opinion, see 296 P. 51.

M. R. Elliott, of Prineville, for appellant.

Coan & Roseuberg, of Portland, and Bernard Ramsey, of Bend, for respondent.

RAND, J.

Plaintiff, by her petition for rehearing, asserts that the court erred in holding that defendant demurred to the complaint upon the ground that the action was not brought within the time limited by the Code, and hence that, since that defense is waived, unless taken advantage of by demurrer or answer, it was not available as a defense in the suit.

It appears from the transcript containing the original pleadings in the action, which was certified to under the hand of the county clerk and seal of the circuit court for Jefferson county, filed in this court on August 4, 1930, that the demurrer filed by defendant, omitting the title of the court and cause, was in the following words:

"Comes now the defendant above named and demurs to plaintiff's complaint filed herein for the reason that the same does not state facts sufficient to constitute a cause of action.

"Lake M. Bechtel

"M. R. Elliott

"Attorneys for defendant.

"This demurrer is based upon section 6, Or. L.

"Points and Authorities.

" 'An action upon a contract or liability express or implied * * * must be brought within six years.'

"The complaint on its face shows that the statute of limitations has run against the cause of action alleged in plaintiff's complaint.

"We hereby certify that we believe the foregoing demurrer to be well founded in law.

"Lake M. Bechtel

"M. R. Elliott

"Attorneys for defendant."

It is evident from the reading of this demurrer, whether imperfectly drawn or not, that the defendant intended to demur upon both grounds, and that the court, in overruling it, not only had its attention drawn to both grounds of demurrer, but also overruled it upon both grounds.

Petition for rehearing therefore must be denied.

BEAN, C.J., and KELLY, J., concur.