Payne v. Savage

• Decision Date: 31 March 1908
• Citation: Payne v. Savage, 51 Or. 463, 94 P. 750 (Or. 1908)
• Parties: PAYNE et al. v. SAVAGE.
• Court: Oregon Supreme Court

94 P. 750

51 Or. 463

PAYNE et al. v. SAVAGE.

Supreme Court of Oregon

March 31, 1908

Appeal from Circuit Court, Marion County; George H. Burnett, Judge.

Action by John M. Payne and another, partners as John M. Payne &amp Co., against George O. Savage.Judgment for defendant.Plaintiffs appeal.Affirmed.

On December 21, 1906, plaintiffs commenced an action against defendant in the circuit court for Marion county to recover $500 as commission on the sale of real estate.On the 31st of that month, and during term time, defendant answered, denying the averments of the complaint, and setting up certain affirmative matter as a defense.Plaintiffs' attorneys reside in Portland, and the answer was served upon the clerk as required by the rules, and immediately mailed to them at their post office address.Plaintiffs failed to reply or otherwise plead to the answer within the time required, and on January 4th defendant moved for judgment on the pleadings.On January 7th plaintiffs applied to the court to be relieved from their default and for permission to plead to the answer basing the application upon the affidavit of one of their attorneys, the substance of which is that he did not receive a copy of defendant's answer until about 12 o'clock of the 3d of January; that he immediately prepared a motion to strike out parts of such answer, and deposited the same in the post office, addressed to Mr. Pogue, an attorney of Salem, accompanied by a letter asking Mr. Pogue to serve and file the motion, but the letter did not reach Mr. Pogue until the 5th of January, when the motion was duly served and filed; that on the 3d of January, when the copy of the answer was received by him, he and his associate were occupied with their professional business in Portland, and could not come to Salem to attend to the filing of the motion, and that they had previously made arrangements with Mr. Pogue to perform such special service for them; that on the 3d of January he was advised by Mr. Pogue that a compromise of the case could be effected if he or his associate could come to Salem; and that he came to Salem on the 7th, but was unable to effect such settlement.On January 22d, the plaintiffs' motion for permission to plead to the answer was denied, and defendant'smotion for judgment on the pleadings allowed.On January 26th plaintiffs filed a motion, supported by affidavits, to set aside the judgment and for permission to reply to the...