Sackett v. Mitchell
| Decision Date | 01 February 1973 |
| Citation | 264 Or. 396,505 P.2d 1136 |
| Parties | Thomas D. SACKETT and Edith Sackett, husband and wife, Appellants, v. Dean H. MITCHELL and Odea A. Mitchell, husband and wife, Respondents, and Roger L. Gay et al., Defendants. |
| Court | Oregon Supreme Court |
Eric C. Larson, Gresham, argued the cause for appellants. On the brief were Burns & Lock and Terry G. Hannon, Gresham.
Raul Soto-Seelig, Portland, argued the cause for respondents. With him on the brief was Paul J. Rask, Portland.
This is a suit in equity to foreclose a mortgage. On trial, to avoid a failure of proof of the allegations of their complaint, as pleaded, plaintiffs moved for leave to file an amended complaint. The trial court denied that motion, but with leave for plaintiffs to move for a dismissal without prejudice, so as to permit plaintiffs to refile a new complaint. That motion was then made by plaintiffs and allowed.
Before the entry of the written decree, defendant moved for allowance of attorney fees. Plaintiffs also apparently discovered that they might have difficulty in obtaining service of a new complaint on all defendants. Plaintiffs then moved to set aside the order dismissing their complaint without prejudice and for leave to file an amended complaint. That motion was denied. The court also, over plaintiffs' objection, entered the decree dismissing plaintiffs' complaint without prejudice and allowing $350 to defendants as attorney fees.
Plaintiffs appeal and assign as error the denial of their motion to amend their complaint, the denial of their motion to set aside the order of dismissal without prejudice and the allowance of attorney fees to defendants.
The allowance of a motion to amend pleadings, particularly on trial, and a motion to set aside a previous order or decree are both ordinarily within the discretion of the trial court, subject to reversal only for abuse of discretion. We have examined the entire record and hold that the trial court did not abuse such discretion in this case. We do not agree with plaintiffs' contention that they had absolute right to demand that the trial court set aside a judgment of dismissal without prejudice, even though they may have had the right to have their complaint dismissed without prejudice.
We also hold, contrary to plaintiffs' contention, that a judgment or decree of dismissal without prejudice under ORS 18.220, as in this case, is a 'final determination of the...
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Cutsforth v. Kinzua Corp.
...court's decision unless it clearly appears that the discretion was abused to the prejudice of one of the parties. Sackett v. Mitchell, 96 Or.Adv.Sh. 649, 505 P.2d 1136 (1973); Morrill v. Rountree, 242 Or. 320, 408 P.2d 932 ORS 483.450 requires motorists to equip their vehicles with a rearvi......
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Far West Landscaping, Inc. v. Modern Merchandising, Inc.
...18.160. A trial court that set aside a judgment without good cause could be reversed for abuse of discretion. Sackett v. Mitchell, 264 Or. 396, 398, 505 P.2d 1136, 1137 (1973). Other courts have upheld the use of the inherent power to rectify the type of mistake which the court committed he......
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84 Hawai'i 390, Survivors of Iida v. Oriental Imports, Inc.
...Inc. v. Krishell Labs., Inc., 271 Or. 356, 532 P.2d 237 (1975); Ferrell v. Leach, 268 Or. 299, 520 P.2d 357 (1974); Sackett v. Mitchell, 264 Or. 396, 505 P.2d 1136 (1973).18 We note here that Ala Moana Gifts' request for attorney's fees was filed on February 11, 1994, 29 days after the Janu......
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Callanan v. Sun Lakes Homeowners' Ass'n No. 1, Inc., 1
...trial was a final judgment so as to give the court authority to award attorney's fees to the defendants. Likewise, in Sackett v. Mitchell, 264 Or. 396, 505 P.2d 1136 (1973), the court held that a judgment of dismissal without prejudice constituted a final determination of the rights of the ......