Nelson v. Smith
| Decision Date | 29 June 1937 |
| Parties | NELSON v. SMITH. [*] |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.
Suit by Carl W. Nelson against Roderick E. Smith. From an adverse decree, defendant appeals.
Decree reversed and caused remanded, with directions.
Cecil H. Greene and Guy C. H. Corliss, both of Portland (Beach Simon & Greene and John M. Pipes, all of Portland, on the brief), for appellant.
Roy F Shields and Donald K. Grant, both of Portland (Maguire Shields & Morrison and Clifford N. Nelson, all of Portland, on the brief), for respondent.
This is an appeal from a decree in equity assessing damages arising out of the commission of a tort and impressing the amount thereof as a lien upon real property owned by the defendant in the city of Portland.
The transcript of the evidence is not here. Hence it is presumed that the findings of the trial court are supported by the evidence. Error will not be presumed.
From the pleadings the following facts are gleaned. On October 11, 1933, at about 2 o'clock in the morning, the defendant, a resident of California, and one Neil Stewart, both in an intoxicated condition, were, as a joint enterprise, operating an automobile on the public highway in Clackamas county, Or. The plaintiff, a state police officer, observing the condition of Smith and Stewart, placed both of them under arrest. While plaintiff was standing on the running board of the car endeavoring to prevent these men from further operating it, the car was wantonly and maliciously driven so close to a telephone pole that, as a result thereof, plaintiff was crushed and severely injured. After the accident Smith returned to California where he has remained for the purpose of avoiding service of summons.
On March 22, 1934, plaintiff commenced an action at law against the defendants Smith and Stewart in the circuit court for Clackamas county. Plaintiff undertook to procure service of summons on Smith by the statutory service on the Secretary of State. Such service, however, was quashed upon motion of the defendant and the action against him was finally dismissed on March 7, 1936.
On the day following the filing of the complaint in the action in Clackamas county, plaintiff commenced a suit in Multnomah county to restrain the defendant from a threatened transfer of his property in Multnomah county during the pendency of the action at law. In the complaint in the suit in equity, plaintiff attached a copy of the complaint in the law action and, by reference, made it a part thereof. It was also alleged that "every allegation contained in said complaint (law action) is true and plaintiff has a good cause of action against the defendants named therein upon the cause of action therein alleged." Service of summons on Smith was made in California.
Defendant appeared specially to quash service but, after motion was denied, filed a demurrer to the complaint for the reasons, (1) that the court had no jurisdiction of the person of the defendant or the subject of the action; (2) that the complaint does not state facts sufficient to constitute a cause of suit.
While this demurrer was pending, plaintiff, with permission of the court, filed an amended complaint wherein the matter of negligence was specifically alleged as set forth in the complaint in the Clackamas county action. It was also alleged that Smith was the owner in fee of certain described real property in Multnomah county, Or.; that, unless Smith were restrained, he would convey such property for the purpose of hindering and defrauding plaintiff from satisfying any judgment that might be recovered in the law action; and that plaintiff has no adequate or complete remedy at law. In the prayer of the complaint plaintiff asked: (1) That defendant be enjoined from conveying or otherwise disposing of his property pending determination of the action at law and "this suit in equity"; (2) that the amount of damages be determined, "unless such determination shall be made in said action at law pending in Clackamas County"; (3) that the amount of damages be impressed as a lien upon the real property described in the complaint and that said property be sold to satisfy such lien; and (4) that such further relief be granted as the court shall deem equitable.
Defendant thereupon moved to strike the amended complaint upon the ground that a new and distinct cause of action had been alleged. The court overruled such motion and the defendant then demurred to the amended complaint for the reasons stated in the demurrer to the original complaint and also upon the ground that there was another action pending between the same parties for the same cause. In the meantime, however, an order to quash service of summons had been entered in the Clackamas county action and, on March 7, 1936, such action was dismissed.
The demurrer to the amended complaint having been overruled, the defendant filed his answer denying generally the allegations of the amended complaint and alleging as an affirmative defense the pendency of the Clackamas county action. Plaintiff filed his reply alleging:
After issue was thus joined, the cause was heard on the merits by the court "without the intervention of a jury," and a decree was entered awarding plaintiff $7,500 damages and impressing the amount thereof as a lien upon the real property described in the amended complaint.
The theory of the plaintiff is that he has no complete and adequate remedy at law and, since the defendant is a nonresident and has real property in this state, equity will grant relief by impressing a lien on such property to compensate plaintiff for injuries arising out of the commission of the tort. Otherwise stated, plaintiff asserts that, when a nonresident comes into this state and, while there, commits an assault upon one of its citizens, then leaves the state to avoid service of summons, equity will enforce reparation for the wrong done by impressing a lien upon such property for the amount of the damages sustained. Plaintiff also contends that, since defendant has made a general appearance and has waived trial by jury, the court had the authority to enter a personal judgment against him even though it be assumed that equity has no jurisdiction over the subject matter.
Defendant contends that the court had no jurisdiction over either his person or the subject matter. He asserts that his objection to the jurisdiction of the court over his person was not waived by answering on the merits since he was forced into court under an illegal process and that, at all times, he maintained his objection to the jurisdiction of the court. It is further contended by the defendant that the court erred in permitting plaintiff to file an amended complaint containing a new and distinct cause of action.
Whatever may be the rule elsewhere, it is well established in this state that, where a party makes a special appearance for the sole purpose of objecting to the jurisdiction of the court and then, after the denial of the motion to quash service of summons, joins issue on the facts or law and participates in the trial of the cause on its merits, he will not be heard, after an adverse decision, to assert that the court had no jurisdiction over his person. As stated in Sweeney v. Jackson County, 93 Or. 96, 178 P. 365, 370, 182 P. 380: "The law will not allow a party to obtain the benefit of jurisdiction of the court if the decree is in his favor, and repudiate it when the result is adverse."
Also see in support of the above conclusion: Sealy v. California Lumber Co., 19 Or. 94, 24 P. 197: Duncan L. Co. v. Willapa Lumber Co., 93 Or. 386, 182 P. 172, 183 P. 476; Williams v. Seufert Bros. Co., 96 Or. 163, 188 P. 165, 189 P. 636; State ex rel. v. Norton, 131 Or. 382, 283 P. 12. An exhaustive note in 93 A.L.R. 1302 lists numerous cases showing conflict of authority. We see no good reason to depart from the rule established in this state since the early case of Sealy v. California Lumber Co., supra, decided in 1890.
In our opinion, the trial court did not abuse its discretion in permitting plaintiff to file an amended complaint some nine months before trial. Amendments to pleadings should be allowed with great liberality before trial if they are essential to a fair trial on the merits of the case. The amendment in the instant case was not prejudicial to defendant. It was germane to the cause of suit as alleged in the original complaint. The amendment pertained more to a change of form than to one of substance. It was not a departure. The original pleading purported to be in equity as did the amended complaint, although each embodied allegations sufficient to state a cause of...
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Ross v. Robinson
...material to such controversy, although they may, in effect, constitute a new cause of action or defense." See, also, Nelson v. Smith, 157 Or. 292, 299, 69 P. (2d) 1072; Kroschel v. Martineau Hotels, Inc., 142 Or. 31, 39, 18 P. (2d) 818; Zimmerle v. Childers, 67 Or. 465, 136 P. While the sta......
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...the case and decided it upon its merits, even if the cause should have been tried in equity.' We take the following from Nelson v. Smith, 157 Or. 292, 69 P.2d 1072, 1076: 'We agree with appellant that equity had no jurisdiction in the instant case. It does not follow, however, that the circ......
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Merit v. Losey
...furtherance of justice, and particularly amendments by a defendant. Pacific Co. v. Cronan, 82 Or. 388, 392, 161 P. 692; Nelson v. Smith, 157 Or. 292, 298, 69 P.2d 1072. The amendment in the case at bar was, in our opinion, tendered before trial. Trial, in this connection, means trial or a h......
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Prehall v. Weigel
...claim does not convert an action into an equitable claim. See, e.g., Thompson, 329 Or. at 638, 997 P.2d 191 (citing Nelson and Smith, 157 Or. 292, 300, 69 P.2d 1072 (1937)); Lieuallen v. Heidenrich, 259 Or. 333, 335, 485 P.2d 1230 (1971). Here, plaintiff sought an accounting to determine th......