Tongue v. Brewster
| Decision Date | 31 July 1899 |
| Citation | 35 Or. 228,58 P. 38 |
| Parties | TONGUE v. BREWSTER et al. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Washington county; Thomas A. McBride Judge.
Action by Thomas H. Tongue against W.L. Brewster and others. Judgment for plaintiff, and defendants appeal. Dismissed.
S.C Spencer, for appellants.
Thomas H. Tongue, in pro. per.
This is a motion to dismiss the appeal. Plaintiff obtained a judgment against the defendants in the circuit court on July 29, 1897 and on the 8th of April, 1898,--more than six months thereafter,--they moved to set it aside upon the ground that it had been inadvertently entered and signed, and filed affidavits in support of the motion, which being overruled, the defendants appeal.
It is alleged, among other things, that the defendants and their attorneys made inquiries of the clerk and the judge of the court below from time to time within the six months given for an appeal, and near the expiration thereof, as to whether a judgment had been given and entered in the cause, and that they had invariably received replies in the negative; that other inquiries had been made of the plaintiff, and of the referee before whom the case was tried, with the same result that the information thus obtained was incorrect and misleading, and that, relying thereon, the defendants inadvertently allowed the time for appealing to elapse, and hence have lost their right of appeal. They ask in effect, that said judgment be set aside to enable them to except to certain findings and conclusions of the court below, and to save their right to appeal. The application is a novel one, and is made under section 102, Hill's Ann.Laws Or. Ordinarily, a party to a motion of this kind seeks relief from an order or judgment against him, so that he may be let in to defend upon the merits of the case. The sole purpose of the motion interposed, however, was to have the judgment vacated, that the defendants might be let in to except to the findings of the court, and prosecute their appeal within the statutory time after the judgment was again entered. It was not designed to have a new trial awarded, or a new hearing upon the merits, but merely that the defendants might be accorded the privilege of putting their case in such a condition that the errors of the trial court may be made available for review in this court. It is not claimed that judgment would have been different but for the...
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State v. Ainsworth
...Co. v. Humfeld, 118 Or. 416, 419, 247 P. 143 (1926); Haas v. Scott et al., 115 Or. 580, 585, 239 P. 202 (1925); Tongue v. Brewster, 35 Or. 228, 228-29, 58 P. 38 (1899). In each case, this court held that the statute did not authorize the trial court to vacate a judgment and to enter a subse......
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Far West Landscaping, Inc. v. Modern Merchandising, Inc.
...The Court of Appeals allowed the motion to dismiss the appeal and this court granted defendant's petition for review. In Tongue v. Brewster, 35 Or. 228, 58 P. 38 (1899), the plaintiff received judgment which was entered. The defendant inquired of both the clerk and the trial judge whether t......
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Old Republic Sur. Co. v. McIlwain
...done so, the neglect [is] inexcusable, and they ought not be relieved from the judgment upon the showing made * * *." Tongue v. Brewster, 35 Or. 228, 229, 58 P. 38 (1899) quoted in Far West Landscaping v. Modern Merchandising, 287 Or. 653, 656, 601 P.2d 1237 See also Western Land, etc., Co.......
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Tierney v. Duris
...Clarkson v. Wong, 150 Or. 406, 42 P.2d 763, 45 P.2d 914 (1935); Haas v. Scott et al., 115 Or. 580, 239 P. 202 (1925); Tongue v. Brewster, 35 Or. 228, 58 P. 38 (1899). The facts in Western Land etc. Co. v. Humfeld, 118 Or. 416, 247 P. 143 (1926), appear to be almost on all fours with the fac......