Williams v. Pacific Surety Co.

• Decision Date: 29 April 1913
• Citation: 131 P. 1021,66 Or. 151
• Parties: WILLIAMS v. PACIFIC SURETY CO. et al.
• Court: Oregon Supreme Court

131 P. 1021

66 Or. 151

WILLIAMS v. PACIFIC SURETY CO. et al.

Supreme Court of Oregon

April 29, 1913

On petition for rehearing. Petition denied.

For former opinion, see 127 P. 145.

McBRIDE, C.J.

For the reasons stated in the original opinion (127 P. 145), to which we still adhere, the petition for rehearing is denied. It would be contrary to the uniform practice in this court and a precedent for future delay should we in an action at law affirm the judgment of the court below overruling a demurrer, and at the same time remand the case with directions to permit the defendants to answer on the merits. While in equity cases, which are tried de novo in this court, such a procedure has been permitted in a few instances, there is no precedent for a like procedure in a law action. Such cases come to us upon the case made in the court below, and we have no authority to hear and determine on affidavits dehors the record, and filed for the first time in this court, the question of the existence of possible meritorious defenses which the defendant did not interpose when it had an opportunity. The rule may appear to operate harshly in the present instance, wherein a large sum of money is involved; but the result is one which might have been averted had the defendant answered when its demurrer was overruled.

The application to remand with leave to answer is overruled.