Malarkey v. O'Leary

• Decision Date: 27 March 1899
• Citation: 56 P. 521,34 Or. 493
• Parties: MALARKEY v. O'LEARY.
• Court: Oregon Supreme Court

56 P. 521

34 Or. 493

MALARKEY v. O'LEARY.

Supreme Court of Oregon

March 27, 1899

Appeal from circuit court, Multnomah county; A.F. Sears, Jr., Judge.

Action in a justice's court by James A. Malarkey against Charles M. O'Leary. Judgment was for plaintiff, and defendant appealed to the circuit court, where judgment was rendered for plaintiff, and defendant appeals. Affirmed.

This action was brought in a justice's court to recover the penalty provided in section 3034, Hill's Ann.Laws, for the refusal of a mortgagee to discharge a mortgage. The complaint avers, in substance, that on February 8, 1895, one William C. Holman, who was the owner of certain real estate in Portland, mortgaged the same to the defendant to secure the payment of a promissory note for the sum of $200, due 90 days after date; that on October 16, 1895, Holman, by warranty deed, transferred and conveyed the mortgaged property to plaintiff, who ever since has been, and now is the owner thereof; that, contemporaneous with such conveyance, and as a part of the same transaction, the plaintiff paid to the defendant the amount due on the note referred to, and it was canceled and delivered up to him, and all the conditions of the mortgage fully performed and complied with; that on the 25th of March, 1896, the plaintiff requested the defendant to discharge the mortgage, or execute and acknowledge a release thereof, offering to pay all costs and charges therefor, but the defendant refused to comply with such request. A demurrer for want of jurisdiction having been overruled, the defendant answered, admitting the execution and delivery of the note and mortgage as alleged in the complaint, the subsequent payment and satisfaction of the note, and compliance with the terms and conditions of the mortgage, but denying upon information and belief the alleged title of Holman and the plaintiff to the mortgaged premises and for a further and separate defense alleged that at their maturity the defendant placed the note and mortgage in the hands of his attorneys for foreclosure; that, in making preparation for that purpose, they performed work and services of the reasonable value of $10, which Holman agreed to pay if defendant would postpone foreclosure proceedings for a time; that, relying upon this promise and agreement the defendant refrained from instituting such proceedings but Holman has not paid said sum, or any part thereof, and it is still due and owing to the defendant. The plaintiff demurred to the new matter in the answer, on the ground that it did not state facts sufficient to constitute a defense to the cause of action set forth in the complaint, and at the same time moved to strike out certain denials. The motion was overruled, and the demurrer sustained. Thereafter the cause was tried by the justice, and a judgment rendered in favor of the plaintiff for the amount demanded, besides costs and disbursements. From this judgment the defendant appealed to the circuit court, where the ruling of the justice court upon the motion and demurrer was sustained. Upon the trial in the latter court, the defendant objected to the admission of any evidence tending to show that the plaintiff had purchased or acquired the title to the mortgaged premises, on the ground that the question of title to real property was involved, and therefore the justice's court had no jurisdiction. This objection was overruled, and defendant excepted. The trial thereafter proceeded, resulting in a judgment against the defendant, from which he appeals to this court, and insists that neither the justice's nor the circuit court had jurisdiction of the case, for the reason that the title to real property was in issue, and that the court erred in sustaining the demurrer to the separate defense set up in the defendant's answer.

M. O'Neill, for appellant.

D.J. Malarkey and S.C. Spencer, for respondent.

BEAN J. (after stating the facts).

The claim of want of jurisdiction is founded on subdivision 1 of section 909 of the statute (Hill's Ann.Laws), which provides that the jurisdiction of a justice's court shall not extend "to an action in which the title to real property shall come in question"; and the contention is that when, in an action in such court, the title to real property is put in issue by the pleadings, the justice is necessarily ousted of jurisdiction, and a judgment thereafter rendered is void, and that jurisdiction cannot be acquired by an appellate court upon appeal therefrom. But we are unable to concur in this position. Section 2081, Hill's Ann.Laws, furnishes the rule by which it shall be determined when the title to real property "comes in question" in a civil action in a justice's court, and points out the method of procedure in such case, by providing that "if it appear on the trial of any cause before a justice of the peace, from the evidence of either party that the title to lands is in question, which title shall be disputed by the other party, the justice shall immediately make an entry thereof in his docket and cease all further proceedings in the cause, and shall certify and return to the circuit court of the county a transcript of all the entries made in his docket relating to the case, together with all the process and other papers relating to the action, in the same manner and within the same time as upon an appeal; and thereupon the circuit court shall proceed in the cause to final judgment and execution in the same manner as if the said action had been originally commenced therein, and costs shall abide the event of the suit." It is obvious that the several provisions of the statute concerning the jurisdiction of a justice's court were enacted with the common purpose of prohibiting such courts from trying actions in which the title to real property is...