Maddox v. McHattan

• Court: Oregon Supreme Court
• Writing for the Court: BROWN, J. (after stating the facts as above).
• Citation: Maddox v. McHattan, 111 Or. 324, 224 P. 833 (Or. 1924)
• Decision Date: 15 April 1924
• Parties: MADDOX v. MCHATTAN. [*]

224 P. 833

111 Or. 324

MADDOX v. MCHATTAN. ^[*]

Supreme Court of Oregon

April 15, 1924

In Banc.

Appeal from Circuit Court, Klamath County; A. L. Leavitt, Judge.

Action by J. A. Maddox against T. G. McHattan. From a judgment of dismissal, plaintiff appeals. Affirmed.

This is an action at law tried by the court without the intervention of a jury, for the collection of a balance alleged to be due on a promissory note. Plaintiff claims that the indebtedness evidenced by the note has been only partially satisfied by the sale of certain lands under mortgage foreclosure in a previous suit. The circuit court dismissed plaintiff's action to recover the alleged balance, and he appeals from the judgment thereon, which was rendered upon the following findings:

"First On September 24, 1920, the defendant made and delivered to the plaintiff his promissory note and mortgage on certain real property situated in Klamath county, Oregon, to secure payment of the same; on January 3, 1922, plaintiff commenced a suit against the defendant in this court to foreclose said mortgage, and summons was issued and served on the defendant by publication only, he being a nonresident of this state and absent therefrom, and the defendant did not appear in said suit, and thereafter, in due time, a judgment was duly and regularly made and entered in favor of plaintiff and against the defendant foreclosing said mortgage in the usual manner.

"Second Said mortgage was given to secure money loaned by plaintiff to defendant, and was not a purchase price mortgage.

"Third No competent evidence was offered to prove that there is any balance, after foreclosure, owing on said note by the defendant, and the court therefore so finds; that there was a total failure of proof to sustain plaintiff's cause of action."

"Conclusions of Law.

"The defendant, T. G. McHattan, should have judgment against the plaintiff for his costs and disbursements of this action that plaintiff's action should be dismissed.

"A. L. Leavitt, Judge.

"Dated October 13, 1923."

Plaintiff asserts that the court erred in finding that no competent evidence was introduced by plaintiff and that there was a total failure of proof, in its conclusion of law that defendant should have judgment against plaintiff for his costs and disbursements and that plaintiff's action should be dismissed, and in rendering judgment in accordance therewith.

Oneill & Irwin, of Klamath Falls, for appellant.

Rutenic & Yaden, of Klamath Falls, for respondent.

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

Responding to the assignments of error, we have searched the record in vain for the purpose of examining the exceptions noted therein to the rulings of the court. We find that plaintiff has reserved no exceptions. The only exceptions disclosed are defendant's exceptions to rulings made upon objections interposed by him. This is not an equity suit, where the cause is tried de novo. Long ago, this court declared the law to be that, in an action at law, it is not error simply, but error legally excepted to, that constitutes ground for reversal. Kearney v. Snodgrass, 12 Or. 311, 7 P. 309. That pronouncement of the law relating to practice has been repeated by this court again and again. A few of the more recent cases are Nibley v. Delahunt, 105 Or. 46, 209 P. 473; Nally v. Richmond, 105 Or. 462, 209 P. 871; State v. Chase, 106 Or. 263, 211 P. 920; Davis v. Arnold Irrigation Co., 107 Or. 93, 213 P. 1013.

The plaintiff says in his assignment that the court erred in its finding of fact No. 3 to the effect that no competent evidence was introduced by plaintiff and that there was a total failure of proof.

The plaintiff not only failed to except to the findings made by the court, but failed to make any application to the trial court for different findings. In fact, the record does not show that the plaintiff ever made any application to the court for any findings, of any kind or character.

The law of this state, as announced by this court in Taffe v. Smyth, 62 Or. 227, 125 P. 308, is:

"When an action is tried by stipulation without the intervention of a jury, and from the evidence received findings of fact are made upon all the disputed questions to which the parties in the pleadings have narrowed their respective allegations, such conclusions will not be disturbed on appeal unless it satisfactorily

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