Priester v. Thrall

• Decision Date: 12 September 1961
• Citation: 229 Or. 184,365 P.2d 1050
• Parties: Eldon L. PRIESTER and Ruby H. Priester, husband and wife, Respondents, v. Harry THRALL and Ardath Thrall, husband and wife, Appellants. . Submitted on Appellants' Brief
• Court: Oregon Supreme Court

Page 1050

365 P.2d 1050

229 Or. 184

Eldon L. PRIESTER and Ruby H. Priester, husband and wife, Respondents, v. Harry THRALL and Ardath Thrall, husband and wife, Appellants.

Supreme Court of Oregon, In Banc.

Submitted on Appellants' Brief Sept. 12, 1961 Decided Nov. 1, 1961.

Reuben Lenske, Portland, for appellants.

No appearance for respondents.

PER CURIAM.

The plaintiffs commenced a forcible entry and detainer action in the district court of Multnomah county to recover possession of certain real property in the possession of the defendants. By answer, the defendants alleged they were the equitable owners of the property and the plaintiffs held only the naked legal title as trustees for the defendants. The case was thereupon transferred from the district court of Multnomah county to the circuit court, where the court of equity proceeded first to determine the equitable defense interposed. The trial court found for the plaintiffs and against the defendants. The defendants thereupon prosecuted this appeal.

The defendants' first assignment of error is: 'The court erred in requiring defendants to proceed with their equitable defense before making plaintiffs prove they were entitled to possession except for such defense.'

No citations of authority for this statement are set out, showing that counsel made no attempt to brief this matter. The defendants' contention is frivolous.

ORS 16.460 specifically provides:

'In an action at law where the defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, * * *. When such an equitable matter is interposed, the proceedings at law shall be stayed and the case shall thereafter proceed, until the determination of the issues thus raised, as a suit in equity by which the proceedings at law may be perpetually enjoined or allowed to proceed in accordance with the final decree; or such equitable relief as is proper may be given to either party. If, after determining the equities, as interposed by answer or reply, the case is allowed to proceed at law, the pleadings containing the equitable matter shall be considered withdrawn from the case, and the court shall allow such pleadings in the law action as are provided for in actions of law.'

The defendants' second contention is likewise totally without merit.

Defendants say the court erroneously admitted in evidence a memorandum agreement, which was executed by the plaintiffs and defendants after the plaintiffs had...