McCoy v. Huntley

• Decision Date: 23 February 1909
• Citation: 53 Or. 229,99 P. 932
• Parties: McCOY et al. v. HUNTLEY.
• Court: Oregon Supreme Court

99 P. 932

53 Or. 229

McCOY et al. v. HUNTLEY.

Supreme Court of Oregon

February 23, 1909

Appeal from Circuit Court, Wheeler County; W.L. Bradshaw, Judge.

Action by C.J. McCoy and another against Charles Huntley. Plaintiffs had a default decree, and, from an order denying a motion to vacate the same, defendant appeals. Reversed and remanded with directions.

Jay Bowerman and R.R. Butler, for appellant.

W.H Wilson, for respondents.

MOORE C.J.

This is an appeal by the defendant from an order of the circuit court for Wheeler county refusing to vacate a decree rendered in a suit which was instituted by C.J. McCoy and H.R. McCoy against Charles Huntley to establish their alleged right to the use of two-thirds of the water of Pine creek, to enjoin the defendant from interfering with the flow of that quantity of water to their lands, and to recover damages for an asserted unlawful diversion. The summons, a certified copy of the complaint, and a preliminary writ of injunction were personally served in that county June 1, 1906, upon the defendant, but he failed to appear or answer within the time prescribed, and a motion for a default was filed. A decree was rendered September 5, 1906, giving to the plaintiffs one-half of the water mentioned, and perpetually enjoining the defendant from interfering therewith, but no damages were awarded. The defendant on April 1, 1907, tendered a verified answer, denying the averments of the complaint, and alleging facts which tend to show that during the irrigating seasons he is entitled to the use of all the water flowing in the creek. He also moved to set aside the decree on the ground that it was rendered in consequence of his inadvertence and excusable neglect, and in support thereof filed his affidavit, to the effect that, after the suit was commenced he engaged John A. Collier, an attorney, to defend for him; that about July 31, 1906, he was obliged to go to Alberta, Canada, where certain business engagements unavoidably detained him until about October 5, 1906, when he returned; that in the year 1903 he agreed to lease his land through which Pine creek flows, to George Duncan, with whom he went to the office of H.H. Hendricks, one of the plaintiffs' attorneys, to have the papers prepared. In answer to Duncan's inquiry as to the extent of Huntley's authority to use the water for irrigation Hendricks replied that the defendant's right thereto was absolute, and he could not be deprived thereof by any court that other persons in whom he reposed confidence made to him similar reports, from which information he believed and thought it impossible that the use of the water, which he had enjoyed for more than 25 years, would be tampered with, and that he supposed his interests in this suit could be protected in his absence by Collier, whom he had engaged for that purpose. Hendricks, opposing the motion, filed an affidavit, in which he states, in substance, that he told Duncan, if he leased Huntley's land, he need have no fear that he would be deprived of the use of the water, but that such conversation was casual and for which opinion no fee was charged or expected; that, after the summons in this suit was served, he saw the defendant, who stated that he did not intend to pay out any money to an attorney to defend the suit, but would permit the trial judge to decide the case, and, if the plaintiffs obtained the use of one-half of the flow of the stream, he would compel the people who diverted water from the creek above his premises to divide with him; that affiant informed the defendant that, unless he answered the complaint, the relief prayed for therein would be granted, but, if he concluded to make no defense, the expenses to be incurred by the plaintiffs would thereby be lessened, in consequence of which their claim for damages might be relinquished; and that he conferred with them, related what Huntley had said, and they waived the damages. Hendricks does not state, however, that the defendant agreed to the proposal. The sworn statement in relation to the waiver is corroborated by the affidavit of H.R. McCoy, one of the plaintiffs, wherein he states that about June 12, 1906, Hendricks asked him if he would agree to forego the claim for damages, in case no defense was made to the suit, and he instructed such attorney to accept the offer which he was informed had been made. When this motion was heard in the court below, Collier appeared as a witness, and testified that about the middle of July, 1906, Huntley called at his office and requested him to ascertain the status of his case; that shortly thereafter the witness went to the courthouse, and found that a motion for a default had been filed; and that he was never employed by the defendant in this suit. Collier also produced and identified a letter which he received from Huntley, written in Alberta, August 22, 1906, the material parts of which are as follows: "I write you a few lines in regard to our case in court. I don't think I can possibly get back in time to attend. I have been delayed here unexpectedly." The witness further testified that at the time he received this communication he was the deputy district attorney, and that an information had been returned against two persons, charging them with the commission of a crime, in which action Huntley was the complaining witness. The defendant filed a supplemental affidavit, denying nearly every statement made by Hendricks, and asserting that about seven days after the summons was served he saw Collier, and supposed he had engaged his services to make the defense in this suit; that, when he left Wheeler county, he expected to...