Portland & Oregon City Ry. Co. v. Sanders

• Decision Date: 19 September 1917
• Citation: 167 P. 564,86 Or. 62
• Parties: PORTLAND & OREGON CITY RY. CO. v. SANDERS ET AL. [*]
• Court: Oregon Supreme Court

167 P. 564

86 Or. 62

PORTLAND & OREGON CITY RY. CO. v. SANDERS ET AL. ^[*]

Supreme Court of Oregon

September 19, 1917

Department 2.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

Action by the Portland & Oregon City Railway Company, against W. A Sanders and Minnie S. Sanders, his wife, and others. From the judgment, the first-named defendants appeal. Affirmed.

This is an action to condemn a right of way for an electric railroad across the premises of the defendant W. A. Sanders in sections 13 and 14, in township 1 south, range 1 east of the Willamette meridian. Commencing at the southeast corner of his land the line runs west 572.36 feet; thence north 9 degrees 30 minutes west along the east boundary of the right of way of the Oregon & California Railroad Company, now operated by the Southern Pacific Railway Company, 233.77 feet; thence east along the south line of Mitchell avenue, in Portland, Or., 611.16 feet; and thence south 230.57 feet, to the place of beginning, containing 3.13 acres, in Multnomah county. The right of way demanded in this action begins at a point in the center of East Twenty-Fourth street extended on the north boundary of Sanders' land 435.5 feet west of his northeast corner; thence west on the south line of Mitchell avenue 10 feet; thence south and parallel with the center line of East Twenty-Fourth street extended 230.57 feet to the south line of his land; thence east along such south line 20 feet; thence north and parallel with the center line of East Twenty-Fourth street extended 230.57 feet, to the south line of Mitchell avenue; and thence west along such south line 10 feet, to the place of beginning. By computation it will be seen that the right of way particularly described cuts the western part of Sanders' land into a quadrilateral, the south boundary of which is 126.86 feet and the north is 165.66 feet, while the east part of his premises forms a rectangle 435.5 feet long and 230.57 feet wide. The complaint herein is in the usual form. All its averments are admitted by the amended answer, which alleges that the reasonable value of the land to be appropriated is $700; that the damages which would result to the western part of the premises amount to $4,000, and to the eastern part $5,000, making in all $9,700. The reply put in issue the allegations of new matter in the answer and averred that the reasonable value of the land demanded did not exceed $150 and that by constructing the proposed railway Sanders' real property would be benefited in the sum of $4,500. The cause was tried, whereupon the jury, which by order of the court had visited the premises, awarded Sanders as the measure of his damages $235, and, a judgment having been rendered on the verdict, he and his wife, the defendant Minnie S. Sanders, appeal.

G. E Hamaker, of Portland, for appellants. J. N. Hart, of Portland, for respondent.

MOORE J. (after stating the facts as above).

It is contended that an error was committed in denying the motion of Sanders' counsel for a postponement of the trial. Supplying the omitted name of a defendant in a criminal action referred to in the affidavit in support of the motion, the sworn statement for a continuance reads:

"State of Oregon, County of Multnomah--ss.: I, W. A. Sanders, being duly sworn, say that I am one of the above-named defendants and the owner of the land sought to be appropriated by the plaintiff in the above-entitled cause; that I was selected as a member of the jury panel for the January term of the circuit court of the state of Oregon for Multnomah county; that ever since I was notified of the date of the trial of the above-entitled cause I have been serving on the jury, with the exception of Saturday, January 29, 1916; that during the past week I have served continually on the jury in the cause of the State of Oregon v. A. Nakano, a Japanese, on trial for murder; that I have not been able to get home for the past three days, and was only released from said jury at 12 o'clock to-day; that because of the foregoing facts, and because of the condition of the weather, the tie-up of the street cars, and the telephones, I have been unable to prepare my case for trial on Tuesday next; that my attorney will not be able to assist on Monday, February 7, 1916, on account of other duties that must be performed by him. For the foregoing reasons I ask a continuance of the above-entitled cause for two or three days. Dated this 5th day of February, 1916. [ Signed] W. A. Sanders. Subscribed and sworn to before me this 5th day of February, 1916. [ Signed] Thomas A. Hayes, Notary Public for Oregon. My commission expires August 1, 1919."

The order disposing of the applications reads:

"That said motion and affidavit were presented to the court and heard on the 7th day of February, 1916, and that thereafter, to wit, on the 30th day of March, 1916, the court made and entered its order nunc pro tunc, denying said motion and application for continuance as follows: 'This cause came on to be heard, upon the oral application and motion of the defendants W. A. Sanders and Minnie S. Sanders, his wife, in open court on the 7th day of February, 1916, for a postponement or continuance of the trial of the above-entitled cause, the plaintiff appearing by its attorney, J. N. Hart, and the said defendants appearing by their attorney, Thomas A. Hayes; said oral application and motion was heard upon the affidavit of the defendant W. A. Sanders, which said motion and affidavit was presented to the court at said hearing, but not filed with the clerk herein until the 11th day of February, 1916. Said oral application was based upon the facts set forth in said affidavit of defendant W. A. Sanders, now on file herein, and which was filed the 11th day of February, 1916. And it appearing to the court at said hearing that this action had been duly and regularly set for trial February 8, 1916, at the hour of 9:30 o'clock a. m. of said day, the same having been set for trial several weeks preceding the date of hearing said oral application and motion, and the court being fully advised in the premises, it is ordered that said oral application and motion for postponement or continuance of trial be, and the same is, overruled and denied. It is further ordered that this order be entered as a nunc pro tunc order as of date February 7, 1916, same being the date said oral application and motion was heard, determined, and denied. Dated this 30th day of March, 1916."'

It will be remembered that Sanders' affidavit in support of the motion for a continuance was based upon the ground that he had been unable to prepare for trial because of his detention as a juror until Saturday noon, February 5, 1916, when the cause was set for hearing, and the trial began the following Tuesday, the 8th of that month. Though the case was at issue when the motion was made, an amended answer was filed February 9, 1916, and during the trial. Looking at the case as thus made by the affidavit, it is evident that the postponement of the trial was desired because of Sanders' inability to obtain witnesses who would substantiate the averments of his answer, yet his sworn statement in support of the motion does not name any person upon whom he relied for that purpose, nor is the substance of any testimony detailed which he had reasonable grounds to believe could be procured in his behalf. The statute regulating applications for continuance reads:

"A motion to postpone a trial on the ground of the absence of evidence shall only be made upon affidavit showing the materiality of the evidence expected to be obtained, and what diligence has been used to procure it, and also the name and residence of the witness or witnesses. The court may also require the moving party to state upon affidavit the evidence which he expects to obtain, and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial shall not be postponed. The court, when it allows the motion, may impose such conditions or terms upon the moving party as may be just. L. O. L. § 115.

The allowance or denial of a motion to postpone the hearing of a cause is a matter within the trial court's discretion, which discrimination will not be disturbed except in case of a manifest abuse. State v. Hawkins, 18 Or.

476, 23 P. 475; Lew v. Lucas, 37 Or. 208, 61 P. 344; State v. Mizis, 48 Or. 165, 85 P. 611, 86 P. 361; State v. Luper, 49 Or. 605, 91 P. 444; State v. Mack, 57 Or. 565, 112 P. 1079; Cole v. Willow River Co., 60 Or. 594, 117 P. 659, 118 P. 196, 1030; North American Securities Co. v. Cole, 61 Or. 1, 118 P. 1032; Obenchain v. Ransome-Crummey Co., 69 Or. 547, 138 P. 1078, 139 P. 920; Harrison v. P. Ry. & Nav. Co., 72 Or. 553, 144 P. 91; Stevenson v. Sherwood, 22 Ill. 238, 74 Am. Dec. 140, and notes.

Though Sanders had served as a juror, he had evidently been discharged when his affidavit was made, for he was present at the trial of this action, and testified in his own behalf, as did other witnesses for him. The cause having been set for hearing several weeks, as the court found, preceding the day appointed for that purpose, it must be assumed in the absence of any showing in the affidavit to the contrary, that due preparation had been made for the trial.

It will be kept in mind that Sanders' affidavit states, "I have been unable to prepare my case for trial on Tuesday next." What preparation, if any, was required is not disclosed, and that part of the sworn declaration last quoted makes the language thus employed the affiant's conclusion of law applicable to his conception of the case rather than a statement of material facts upon which the court was required...