Stites v. McGee

• Citation: 37 Or. 574,61 P. 1129
• Parties: STITES et al. v. McGEE et al.
• Decision Date: 13 August 1900
• Court: Supreme Court of Oregon

61 P. 1129

37 Or. 574

STITES et al. v. McGEE et al.

Supreme Court of Oregon

August 13, 1900

Appeal from circuit court, Josephine county; H.K. Hanna, Judge.

Action by W.C. Stites and another against James O. McGee and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

In August, 1896, the plaintiffs, claiming to be the owners by prior appropriation of 160 inches of water from Munger creek in Josephine county, brought a suit to enjoin the defendants from interfering with their use thereof. Before an answer had been filed or issue joined, the parties, for the purpose of settling the controversy, stipulated in writing that the plaintiffs are the owners and entitled to the prior use of 140 inches of the waters of the stream, measured under a 6-inch pressure, to be delivered in the channel 16 1/2 feet below McGee's dam, through a box on a grade of one-fourth inch to the rod, to be constructed and maintained by the defendants, and that a decree be entered accordingly. Thereafter, and on the 30th of September, 1896, the respective parties appeared in court by their attorneys, and "consenting and agreeing" thereto, a decree was duly entered in accordance with the stipulation, which was recorded in full in the journal, and made a part of the decree. At a subsequent term, but within a year after the rendition of the decree, the defendants moved to set it aside, and for permission to answer, on the ground that the stipulation was made, and their consent to the decree given under a mutual mistake of the parties as to the actual quantity of water flowing in the channel of the creek at the defendants' dam. This motion was allowed, and the plaintiffs appeal.

G.W Colvig and Davis Brower, for appellants.

J.R. Neil, for respondents.

BEAN C.J. (after stating the facts).

In support of the ruling of the court below it is argued that this case is governed by section 102 of the statute (Hill's Ann.Laws), which provides that the court may "in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect." The decree in question, however, was not taken against the defendants through any of the causes enumerated in the statute, but was rendered with their knowledge and by their express consent, and hence does not come within the provisions of the section referred to. True, it is alleged that the stipulation or contract which forms the basis of the decree was entered into through the mutual mistake of the parties, but it is not claimed that there was any mistake or inadvertence about the decree itself. Whether the stipulation expresses the true and actual intent and agreement of the...