Sanders v. Taber

• Decision Date: 14 March 1916
• Citation: 155 P. 1194,79 Or. 522
• Parties: SANDERS v. TABER ET AL.
• Court: Oregon Supreme Court

155 P. 1194

79 Or. 522

SANDERS v. TABER ET AL.

Supreme Court of Oregon

March 14, 1916

Department 1.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by Robert Sanders against J. M. Taber and others. From an order granting plaintiff's motion for a new trial, the defendants appeal. Affirmed.

On July 4, 1914, plaintiff was riding on the rear seat of a motorcycle driven by one Williamson. They were traveling south on Grand avenue, Portland. At the same time defendant J. M. Taber was driving an automobile north on that street. At the intersection of Grand avenue and East Washington street the two vehicles collided, resulting in the injuries upon which this action is based. The complaint charges negligence in violating an ordinance of the city of Portland in the manner of making the turn into East Washington street in failing to give warning of an intention to turn, and in driving at an excessive rate of speed. The answer, after certain admissions and denials, undertakes to plead the three affirmative defenses of contributory negligence, unavoidable accident, and a failure to use the "last clear chance." A trial was had resulting in a verdict and judgment for the defendants. Thereafter, on January 20, 1915 being the term at which the judgment was rendered, plaintiff filed a motion for a new trial, and on February 6th, the court made and entered an order allowing the motion from which defendants appeal.

R. E Dennison and J. C. Simmons, both of Portland, for appellants. Chas. G. Benson, of Portland (Benson & Benson, of Portland on the brief), for respondent.

BENSON, J. (after stating the facts as above).

There are two assignments of error: First, that the court had no jurisdiction to make the order after the term at which the motion was filed, for the reason that no order was made and entered continuing the matter for hearing in compliance with section 175, L. O. L as amended, Laws 1911, p. 152. The only affirmative evidence upon the question is the recital in the order which, so far as pertinent to the inquiry, reads thus:

"Now at this time this matter coming on to be heard by the court on motion of the plaintiff for an order of the court setting aside the verdict and judgment heretofore entered in this cause in favor of defendants, the consideration of the motion having been continued until this date because of lack of time on the part of the court to hear the same," etc.

In the absence of any record to the contrary such recital is conclusive. Jacobs v. Jacobs, 154 P. 749. It is true that upon the hearing of the motion in the trial court the defendants assigned the absence of such continuance as a reason for their opposition thereto, but the court in the bill of exceptions does not certify that the statement was true, and overruled their objections.

The second contention of defendants is that the...