State v. Pacific Live Stock Co.

• Decision Date: 22 July 1919
• Parties: STATE v. PACIFIC LIVE STOCK CO.
• Court: Oregon Supreme Court

182 P. 828

93 Or. 196

STATE v. PACIFIC LIVE STOCK CO.

Supreme Court of Oregon

July 22, 1919

In Banc.

Appeal from Circuit Court, Harney County; Dalton Biggs, Judge.

Suit by the State of Oregon against the Pacific Live Stock Company. From an order dismissing the cause without prejudice defendant appeals. Affirmed.

This is a suit brought by the state against the defendant to set aside and cancel the deeds to about 14,000 acres of state lands, which had been conveyed by the state to the defendant upon the ground of fraud.

The defendant appeared and filed a demurrer to the complaint upon the ground that it did not "state facts sufficient to constitute a cause of suit," and also upon special grounds stated therein. Thereafter the demurrer was overruled. The defendant then answered, with a denial of the essential allegations of plaintiff's complaint, and also pleading certain affirmative defenses, based upon the statute of limitations, and that the defendant was an innocent purchaser, etc., ending with a prayer for the dismissal of the suit, and such other relief as may be meet in the premises.

The case, being put at issue, was continued from term to term until about November, 1917, at which time the defendant moved to dismiss the same for want of prosecution. This motion seems to have been undisposed of; and, while it was still pending before the court, and on September 11, 1918, the plaintiff came in by the Attorney General, and moved for a dismissal of the cause, without prejudice, and on the same day an order was filed dismissing the cause, from which order the defendant appeals.

Burnett and Benson, JJ., dissenting.

Edward F. Treadwell, of San Francisco, Cal., and John L. Rand, of Baker, for appellant.

J. O Bailey. Asst. Atty. Gen. (Geo. M. Brown, Atty. Gen., on the brief), for the State.

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

The principal question presented in the case is as to whether a plaintiff may take a voluntary nonsuit under the provisions of section 182, L. O. L., made applicable to suits in equity by section 410, L. O. L., after a demurrer has been filed and disposed of. The question has been very ably and exhaustively briefed and presented by the attorneys on each side, and depends entirely upon the construction of the first clause of section 182, reading as follows:

"A judgment of nonsuit may be given against the plaintiff as provided in this chapter--1. On motion of the plaintiff, at any time before trial, unless a counterclaim has been pleaded as a defense."

It is strenuously and plausibly urged on behalf of defendant that the hearing upon the demurrer and the decision thereon was a "trial" of an issue of law, and therefore terminated the right to a voluntary nonsuit under said clause, and Hume v. Woodruff, 26 Or. 373, 38 P. 191, and Ferguson v. Ingle, 38 Or. 43, 62 P. 760, are cited to support the contention.

The plaintiff, on the other hand, contends that the hearing upon a demurrer is not a "trial" within the meaning of section 182, where the demurrer is overruled and the defendant answers, thus putting the case at issue, and cites Hutchings v. Royal Bakery, 60 Or. 48, 118 P. 185, to sustain the contention upon its part.

It seems to us the contention of the plaintiff must be sustained. There can be no doubt under our statute but what the hearing upon a demurrer is some sort of a "trial." Section 109, L. O. L. But the word was not used in that sense in section 182, L. O. L.

Section 113, L. O. L., evidently creates and recognizes two distinct meanings of the word "trial." One is a "trial" of an issue of law, and the other is the "trial" of an issue of fact. That these two classes of trials are entirely distinct and separate things is very clear by reference to the section following. Section 114, L. O. L. They are tried at different times by separate tribunals. An issue of law is tried before the judge, and an issue of fact is ordinarily tried before a jury.

In other words, the word "trial" as defined in the Code, covers two distinct and separate proceedings. It is like many other words in the English language, which have different meanings, and are sometimes used with one meaning and sometimes with the other. Certainly, the Legislature had some definite period in the litigation in mind when the right to a voluntary nonsuit should be extinguished.

Here, then, were two separate adjudications to which the word "trial" might apply; one a preliminary trial by the court of an issue of law, and one a trial upon the merits before a jury. The question is, To which of these did the Legislature refer in section 182? This question we must solve by reference to the context, the subject-matter, and the meaning with which the same word "trial" is used by the Legislature in other sections of the Code.

That the word is used in the sense of a final trial upon the merits in other sections of the Oregon Code is very plain. Section 45 provides that--

"The court, or judge thereof, may change the place of trial," etc.

Section 46, L. O. L., provides that this motion can only be made after the cause is at issue upon a question of fact. So it is plain that the word "trial" in section 45, supra, had reference only to the trial of a question of fact upon the merits.

Section 102, L. O. L., provides:

"The court may, at any time before trial, in furtherance of justice, * * * allow any pleading or proceeding to be amended by adding the name of a party," etc.

It seems perfectly clear that the words "before trial" in that section refer to a trial upon the issues of fact. A like use of the word is again made in section 105. Indeed, in subdivision 3 of section 182, the word "trial" is used three different times by the Legislature, and every time with plain reference to a trial on the merits.

It seems to me that where we find the same word "trial" is used so frequently in other places in the Code and even in the same section, and always, or even generally, with entire reference to a trial on the merits, we may reasonably assume it uses the word in this instance with that meaning.

In Warm Springs Irr. Dist. v. Pacific Live Stock Co., 89 Or. 19, 22, 173 P. 265, 266, this court had occasion to define the meaning of the word, as used at still another place in the Code, where a provision is made in condemnation proceedings for the fixing of a reasonable attorney's fee by the court at the "trial." Mr. Justice Bean, delivering the opinion of the court, said:

"For various purposes, a hearing on a demurrer is a trial, and so is the hearing on the question of attorney's fee, as suggested by counsel; but does the statute mean such a trial, or does it mean a trial of the subject-matter of the action? The subject of the litigation is the damages to the property proposed to be taken. Hearing on demurrer, attorney's fee, motion, or trial is not 'the trial' as to the subject of the litigation, but of matters merely incident to and growing out of the litigation of the subject-matter of the action.

"When the lawmakers provided that in such a proceeding a reasonable attorney's fee should be fixed by the court 'at the trial' it is apparent from the examination of the whole section and of all the provisions for proceedings in condemnation that they had in mind the main or final trial of the cause."

This case was tried in banc, and the definition of the word "trial," as used in that section, was concurred in by every member of the court.

In Hume v. Woodruff, supra, Mr. Chief Justice Bean, delivering the opinion of the court, says:

"An issue of law arises upon a demurrer, * * * and, since a defendant may demur upon the ground 'that the complaint does not state facts sufficient to constitute a cause of suit,' * * * it would seem to follow that the determination of an issue presented by such a demurrer is a 'trial' of the cause within the meaning of the statute, * * * and, as a consequence, that after the disposition thereof a plaintiff is not entitled to a voluntary nonsuit unless by leave of the court an amended complaint is filed."

In that case that question was really not before the court, for an amended complaint had been filed, and the court held that under the pleadings actually presented the plaintiff did have a right to the voluntary nonsuit.

In Ferguson v. Ingle, supra, the condition was exactly the same, and again the cause was reversed because a voluntary nonsuit had been refused after the demurrer had been sustained, and an amended pleading had been filed.

In Hutchings v. Royal Bakery, supra, the defendant filed a demurrer, which was overruled, as in this case, and the cause came on for trial before a jury. After the jury had been formed and several witnesses had testified, the plaintiff moved for a voluntary nonsuit, and his motion was allowed. After a very careful consideration of the authorities by Mr. Justice Bean, this action was affirmed.

In that case there was a dissent by Mr. Justice McBride, but, as I read the dissenting opinion, it was his judgment also that the voluntary nonsuit could be taken up to the time of the commencement of the trial upon the facts. The whole court was apparently unanimous that it did not end with the hearing upon the demurrer, which had been filed and disposed of in that case.

Of course, if the plaintiff could take a voluntary nonsuit at any time during the trial on the facts, it follows by stronger reasoning that he could take it at any time before the trial.

It is true this decision was in an action at law, but it seems under section 404, L. O. L., which makes section 182 applicable to equity suits, the same reasoning must apply.

The same result seems to have been reached by the entire court in the case of Currie v. S. P. Co., 23 Or. 400,...