Mitchell v. Campbell

• Decision Date: 31 January 1886
• Citation: 14 Or. 454,13 P. 190
• Parties: MITCHELL v. CAMPBELL.
• Court: Oregon Supreme Court

13 P. 190

14 Or. 454

MITCHELL v. CAMPBELL.

Supreme Court of Oregon

January 31, 1886

Appeal from Union county.

James H. Slater and James K. Kelley, for appellant.

Ramsey & Bingham, for respondent.

STRAHAN, J.

The respondent and others, claiming to be heirs at law of one P.M. Curry, deceased, jointly commenced an action in the circuit court of Union county against the appellant, to recover the possession of a tract of land situated in said county, consisting of about 210 acres. The defendant demurred to the complaint on the ground that several causes of action were improperly united. The demurrer was sustained, and thereupon the respondent, by leave of court, filed an amended complaint, which contained two counts. In the first count plaintiff alleged, in substance, that she is now, and for 14 years last past has continuously been, the owner in fee and seized of an undivided one-third of, in, and to the premises in controversy, and which are particularly described, as tenant in common with A.E. McLean, E.J. Ashby, Ida Benson G.M. Curry, ______ Curry, and _______ Curry, who, as tenants in common with the plaintiff, own the other two-thirds of said tract of land, and that the plaintiff is now entitled to the immediate possession of said land; that the defendant is now in the wrongful possession of said land, and wrongfully withholds, and has continuously so wrongfully withheld, the same from the possession of the plaintiff, for six years last past, during all of which time defendant has continuously denied, and still denies, plaintiff's right to the possession of said land, or any part thereof. The second cause of action is nothing but a repetition of the first. It claims the same interest, in the same premises, substantially in the same words. It also claims $333.33 damages for each and every of the six years that the defendant has so as aforesaid wrongfully received and appropriated to his own use the said rents, issues, and profits arising from said land. The amended complaint was filed on the twenty-seventh day of October, 1885, and on the same day the appellant filed a motion to strike it out because it had been improperly filed. On the twenty-ninth day of October, 1885, the respondent filed a motion for a default against the defendant. The two motions were argued and submitted together, on October 31st, and taken under advisement by the court, and on November 2d the court allowed plaintiff's motion for a default. The journal entry shows no disposition of the motion to strike out the amended complaint. So far as appears, that motion was wholly ignored. No service of the amended complaint was made as required by section 68 of the Civil Code, and the court made no order specifying the time within which defendant should answer the same. On November 3 1885, the defendant filed a motion to set aside the default supported by his own affidavit, and also by an affidavit of one of his attorneys. This motion was accompanied by an answer in proper form, and verified, and leave was asked to file the same, but it was refused.

The following is the journal entry in the case, disposing of the defendant's application, and also embracing the terms upon which said pretended default was set aside: "Now at this time, this cause came on to be heard upon the motion of the defendant to open the default, and allow the defendant to file answer herein. The plaintiff appeared by T.H Crawford and Shelton & Hardesty of counsel, and the defendants appeared by J.H. Slater of counsel, and said motion having been overruled and denied by the court thereupon the parties stipulating and consenting that said default may be vacated and set aside, upon the condition that the defendant shall withdraw from the issues to be determined in this cause any plea or right to plead, or insist upon, at the trial of this cause, the title by limitation or title by adverse possession, it is therefore considered and ordered that said default be, and the same is hereby, opened and set aside upon said conditions so consented to by said parties, and not otherwise, and that the defendant have until the first day of January, 1886, in which to plead to the merits of the amended complaint herein. It is further...