State ex rel. Shepherd v. Simpson

• Citation: 138 P. 467,69 Or. 93
• Parties: STATE EX REL. SHEPHERD v. SIMPSON.
• Decision Date: 03 February 1914
• Court: Supreme Court of Oregon

138 P. 467

69 Or. 93

STATE EX REL. SHEPHERD v. SIMPSON.

Supreme Court of Oregon

February 3, 1914

On petition for rehearing. For former opinion, see 137 P. 750. Petition denied.

BURNETT, J.

The defendant in the court below did not answer or otherwise appear in this action. The circuit court heard some testimony after the default of the defendant was entered, and rendered judgment to the effect that the relator was yet the lawful incumbent of the office in question, and would be until the election and qualification of his successor, the defendant never having qualified. Dissatisfied with the uncertain tenure thus awarded him, the relator appealed. The defendant moved to dismiss, but this court speaking by Mr. Justice McNary, refused to entertain his motion, and dismissed the appeal sua sponte, holding that neither party to a judgment for want of an answer has the right to appeal. The relator now moves for a rehearing on that subject.

Section 549, L. O. L., reads: "Any party to a judgment or decree other than a judgment or decree given by confession, or for want of an answer, may appeal therefrom. The party appealing is known as the appellant, and the adverse party as the respondent; but the title of the action or suit is not changed in consequence of the appeal."

Section 185, L. O. L., is partly in these words: "Judgment may be had upon failure to answer, as follows: When the time for answering the complaint has expired, and it appears that the defendant, or one or more of several defendants, in the cases mentioned in section 61, has been duly served with the summons and has failed to answer the complaint, the plaintiff shall be entitled to have judgment against such defendant or defendants, (1) In an action arising upon contract for the recovery of money or damages only; if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted by the court or judge thereof, the clerk, upon the application of the plaintiff made in writing and filed with the clerk, shall enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons, against the defendant or against one or more of several defendants, in cases provided for in section 61; (2) In other actions, including all actions sounding in damages or tort, as opposed to an action on contract or for debt, if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted by the court or judge thereof, the clerk shall, upon the written motion of the plaintiff being filed, enter the default of the defendant, and thereafter the plaintiff may apply to the court for the relief demanded in the complaint; and the court shall, upon such application, give judgment for the amount claimed in the summons, or the relief demanded in the complaint, unless it be necessary, to enable the court to give judgment or carry the same into effect, to take proof of any matter of fact, in which case the court may order the entry of judgment to be delayed until such proof be taken. The court may hear the proof itself, or make an order of reference, or that a jury be called to inquire thereof. Ther...