Whipple v. Southern P. Co.

• Decision Date: 30 January 1899
• Citation: 55 P. 975,34 Or. 370
• Parties: WHIPPLE v. SOUTHERN PAC. CO.
• Court: Oregon Supreme Court

55 P. 975

34 Or. 370

WHIPPLE v. SOUTHERN PAC. CO.

Supreme Court of Oregon

January 30, 1899

Appeal from circuit court, Douglas county; J.C. Fullerton, Judge.

Action by William Whipple against the Southern Pacific Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

This action was commenced in the justice's court of Pass Creek precinct, Douglas county, to recover the sum of $50, the alleged value of a cow, which was killed by being struck with a locomotive operated by defendant's servants. The transcript shows that defendant, having been served with the summons in said action, appeared by an attorney at the time and place specified in the notice, whereupon the court, at its request, postponed the trial to June 23, 1896, at the hour of 10 o'clock a.m.; that at the time so appointed the court, at defendant's request, adjourned the hearing another hour, at the expiration of which time the following entry was made in the justice's docket, to wit "June 23. The hour of 11 o'clock having arrived, and no answer or pleading of any kind having been filed plaintiff again demanded judgment, and it is by the court considered, ordered, and adjudged that said plaintiff have of and from said defendant the sum of $50, and his costs and disbursements at $20.85, and hereof let execution issue." From this judgment the defendant appealed to the circuit court, and there moved for leave to file a formal answer, which, being denied, the appeal was dismissed, and judgment rendered against defendant as originally given, and for plaintiff's costs and disbursements incurred in the circuit court; and from this latter judgment defendant appeals.

A.H. Tanner, for appellant.

A.M Crawford, for respondent.

MOORE J. (after stating the facts).

As a preliminary matter, plaintiff's counsel move to dismiss the appeal upon the ground that appellant's printed abstract is not indexed, and does not contain so much of the record as is necessary to a full understanding of the questions presented for decision. The respondent, availing himself of the provisions of rule 5 of this court, filed an additional abstract, containing such portions of the omitted record as he deemed essential to a full understanding of the questions involved in the appeal, thus correcting the record in that respect. The objection that the abstract does not contain an index comes too late after respondent has filed his brief upon the merits, and hence the motion is denied.

Considering the appeal as made by the record, it is contended by defendant's counsel that no formal or written answer was required in the justice's court (Laws Or.1893, p. 38) and that, defendant being in court by an attorney, and ready for trial, no judgment could be rendered against it for want of an answer. A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, and until he does so appear he shall not be heard in such action. Hill's Ann.Laws Or. § 530. In McCoy v. Bell, 1 Wash.St. 504, 20 P. 595, under a similar statute, it was held that a defendant, in person or by an attorney, must give notice of his appearance, and that a mere corporal presence of the defendant or his agent at the place of trial is not sufficient, notwithstanding the Code of Washington provided that pleadings, except in certain cases, can be made orally or in writing. See, also, Belknap v. Charlton, 25 Or. 41, 34 P. 758. If the rule was as contended for, and a plaintiff could not take judgment when the defendant was present in court, what an anomalous condition would confront a plaintiff when the defendant appeared in pursuance of the service of a summons, but refused to plead. the pleadings in a justice's court may be either oral or in writing, but, when oral, the substance thereof must be entered in the justice's docket. Laws Or.1893, p. 38. The transcript of such docket, however, fails to show that defendant's attorney made any oral statement to the justice which he desired should be entered in the docket as an answer to the complaint, and, as he failed to file a written answer within the time allowed by the court, the defendant was in default when the judgment was rendered.

It is contended that the amendment of 1893 (Laws Or.1893, ...