Thompson v. Connell

• Decision Date: 19 April 1897
• Citation: 48 P. 467,31 Or. 231
• Parties: THOMPSON v. CONNELL et al.
• Court: Oregon Supreme Court

48 P. 467

31 Or. 231

THOMPSON v. CONNELL et al.

Supreme Court of Oregon

April 19, 1897

Appeal from circuit court, Multnomah county; L.B. Stearns, Judge.

Suit by R.H. Thompson against Thomas Connell and another. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

This suit was commenced May 30, 1895, to set aside a judgment of the circuit court of Multnomah county obtained by Connell against Thompson in an action at law, and, in the meantime to restrain the enforcement of the same by execution, which judgment, it is alleged, was obtained by fraud. The fraud complained of is set forth in substance as follows: That after the commencement of the action the plaintiff therein who is one of the defendants here, and one Charles Hirstel with intent to deceive the plaintiff, the defendant therein and induce him not to employ an attorney in the action, represented that Connell would extend the time for answering until October 2, 1893, and that in the meantime it was contemplated the cause would be settled and plaintiff be discharged from his alleged liability; that plaintiff relied upon the said representations of defendant, and said Hirstel was thereby induced to and did wait until the day named without employing an attorney or appearing in the cause, but that the defendant, wickedly conspiring to take undue advantage of plaintiff, and to defraud him of his rights in the premises, caused judgment to be given and rendered on October 1, 1892, against plaintiff, without his knowledge or consent, and contrary to the said understanding and agreement. Subsequently to the rendition of said judgment, the plaintiff applied to the circuit court by motion to be relieved against it, and for leave to file an answer therein, and the application was denied. There was a demurrer to the complaint, which was sustained, and the ruling of the court in this regard is assigned as error.

R.R. Duniway, for appellant.

W.E. Thomas, for respondents.

WOLVERTON J. (after stating the facts).

It is contended, in support of the ruling of the court below, that, the plaintiff having made application to the court in the law action to set aside the judgment, and the application having been passed upon and denied, he is now precluded from prosecuting a suit in equity for the purpose of annulling the same judgment, based upon grounds identical with those upon which the application was founded; and we are of the opinion that the contention is sound. The statute has provided 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." Hill's Ann.Laws Or. § 102. It was under this section that defendant made his application to have the judgment vacated, and, although it is not directly alleged in the complaint that the application was based upon the same ground that the plaintiff here relies upon for annulling it, we think it may be fairly implied that such was the case. Indeed, it is the only ground upon which he could claim relief either by the motion or suit, if the allegations of the complaint are true; and they must be so considered for the purposes of the demurrer. The provision above quoted for relief in the action was adequate for the purpose. True, the grant of such relief rests within the discretion of the court, but the discretion here spoken of is an "impartial discretion, guided and controlled in its exercise by fixed legal principles"; "a legal discretion to be exercised in conformity with the spirit of the law, and...