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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Oct. 23, 1911)
DAILY CAPITAL JOURNAL. SALEM, OREGOK. MQSDAT, OCTOBER 23, 19 It. . PACT TEES I refreshing my memory ns tn tti enn-l ' v m'-n ji m I ..aaaaaaaaaaaaaaaa..; aaaaaaaaa. ............. ................. OREGON SUPREME COURT DECISIONS Fill Text PibHshed bj Coirtesy of F. A. Tuner, Reporter of the Snpreme Coart Evans t. Evans. Decided October 10, 1911. Charles Evans, respondent, v An gelina Evans, appellant. Appeal from the circuit court for Clackamas county. Hon. James U. Campbell, judge. Argued and submitted October 3, 1911. Richard Sleight and (C. A. Lamoreux on the brief) for appellant V. H. Fowler for respondent. Moore, j. Reversed. Moore, J. This Is an appeal by the defendant from an order of the cir cuit court for Clackamas county, re- fusing to set aside a default decree and for leave to answer a complaint. The facts are that on October 19, 1906, a suit was commenced In that court by Charles Evans against Angeline Evans to secure a dissolution of their marriage. The complaint stated the requisite facts to confer jurisdiction of the cause and alleged cruel and inhuman treatment on the part of the defendant towards the plaintiff as the ground for the relief sought. Per sonal service of process could not be made upon the defendant, whereupon the summons was undertaken to be served by publication, the court's or der therefor being based upon plain tiff's affidavit which, so far as ma terial, is as follows: "That defendant is not a resident of, nor is she within the state of Oregon; that defendant's last known place of residence or abode was the town of Mankato, State of Minnesota. That plaintiff has made due and diligent search to learn or ascertain the present residence or whereabouts of said defendant, and has in this behalf inquired of and from Miss Anna L. Giless, St. Johns, Oregon, and Arthur H. Johnson, East Portland, Oregon, persons who are acquainted with or most likely to know the present residence, abode or whereabouts of defendant, and that he is Informed by said last mentioned persons, and each of them, that they know that the defendant is not now a resident of nor is she within the state of Oregon, and that they verily believe that said defendant Is now 'a resident in the town of Mankato, state of Minnesota, and that said last men tioned place, is the last known place, residence, abode or wherea bouts of said defendant." Certified copies of the complaint and of the summons were mailed to Mankato, Minnesota, addressed to the defendant and the summons was duly published for the required time in a news paper printed at Oregon City. No appearance having been made or answer filed by the defendant, her default was entered, whereupon the cause was referred and from the tes timony taken findings of fact and of law were made and based thereon a decree of divorce was rendered April 15, 1907. This motion was Interposed April 18, 1910, when an answer was ten dered denying the allegations of the complaint as to the cruel and inhu man treatment charged and praying that the suit for a divorce might be dismissed. In support of the applica tion to set aside the decree defendant filed- an affidavit in which she gives the several places in which she and the plaintiff lived together, saying: There has not been a day since the marriage that he could not have learned by telegram and by letter the postoffice address and place of domi cile of defendant and all about her and what she was doing." She further deposed that in the summer of 1904 the plaintiff left Columbus, Wiscon sin, where she was caring for her sick mother; that after the death of the latter the affiant went to Felton, Minnesota, where she found him liv ing in a rented house with Miss Anna L. Gillness (Gllness) whom he intro duced to her as a poor orphan he wished to adopt, but whom he repre sented to others at that place as his daughter. That about March 1. 1905, the defendant complained to plaintiff ot the presence of Miss Gillness in their home, whereupon he beat and choked affiant and his ill treatment became so conspicuous that quite a number of the women of Felton or dered such woman to leave town within 24 hours. That the command was obeyed and about June 25, 1905, plaintiff abandoned and deserted de fendant since which time he has con tributed nothing toward her support. That she learned he went to Fargo, North Dakota, where he joined Miss Gillness with whom he departed to the Pacific Slope- She states that efforts she made to find him in Ore gon without success. That on Janu ary 9, 1310, she learned that he vis ited Columbus, Wisconsin, to attend his mother's funeral, and was then informed that he was living with Anna L. Gillness, claiming that she was his wife. "All of the information regarding his being divorced from de fendant and married to the Gillness woman was obtained by her since the first day of January, 1910. and prior to that date she had no notice, knowl edge or information by which she could discover these facts. She then retained L. E. Brossard of Columbus. Wisconsin, to investigate the matter of plaintiffs residence, divorce and the like. On February 12, 1910. de fendant first saw a certified copy of the Judgment roll In plaintiff's divorce action. The statements contained in plaintiff's affidavit for an order for publication of summons as to defen dant's place of residence and domi cile were false and untrue and were known by plaintiff to be false and un true." The defendant further swears that she never was In Mankato, Min nesota, except, possibly to pass through such place on the train; that she never received the summons In the suit for a divorce and had no knowledge of the pendency of the pro ceedings until January, 1910, and was ignorant of any fact or cfrcumstance that could have lead to the discovery thereof. The defendant's sworn dec larations are corroborated by the af fidavit of Mae Dahl to the effect that at Felton, Minnesota, in March, 1905, the affiant visited the defendant whom she found in a serious condition with marks of violence on her face and throat and learned that she had been severely beaten by the plaintiff; and that a delegation of women of that place waited upon plaintiff and Lu cille Evans, the young woman whom he represented as his daughter, or dered her to leave and threatened her if she did not comply with the com mand; and that the plaintiff suddenly disappeared from that place about June, 1905. The sworn statements of the last affiant are substantially con firmed by the affidavits of Otto Dahl, Lewis Gilbert and Catherine Barry, who reside at Felton, Minnesota. The affidavit of Arthur H. Johnson, the person mentioned in the affidavit for the service of the summons by publi cation, is to the effect that he is the plaintiff's cousin and acquainted with the parties hereto, each of whom he knew In Wisconsin. He deposed as follows: "Affiant further says that the plaintiff above named never at any time inquired or this affiant either orally or in writing, the resi dence, abode, whereabouts or post office address of the defendant That affiant never at any time told plain tiff, or wrote him that th edefendant was not a resident of Oregon, or that he believed that the defendant resided In the town of Mankato, state of Min nesota, and never told or wrote any one to that effect. That affiant never heard of defendant residing In the town of Mankato, Minnesota." The affidavit of Albert Yoth Is to the ef fect that in January, 1910, when plain tiff visited Wisconsin he evidently en deavored to conceal from the people of Columbus in that state the place of his residence. This declaration is cor roborated by the affidavit of E. E. Brossard, the defendant's attorney. The plaintiff filed an affidavit contro verting the sworn declarations here inbefore set forth, and stating in ef fect that the affidavit for the service of the summons in the divorce suit was made under the honest belief that defendant's residence and abode were then at Mankato, Minnesota; that be fore making such affidavit he tele phoned Arthur H. Johnson, a resident of Portland, Oregon, who informed him -that the defendant had left Fel ton, Minnesota, to attend a normal school at Mankato in that state; that affiant has since been informed that she left Felton to attend a normal school at Moorehead. Minnesota. The plaintiff further deposed that defen dant's motive in seeking to set aside the divorce is to secure a part of the property which he subsequently Inher ited from his parents; that by the means which she thus adopted an ef fort has been made to impose upon the court and to blackmail him; that relying upon the validity of the di vorce he again married and if the decree Is set aside It would ruin him financially, make him technically guilty of a crime and place upon his present wife a fearful social position without any fault of either. The plaintiff's counter affidavit is corrob orated by that of his present wife. An affidavit was filed by Arthur H. Johnson explaining his sworn state ment made in behalf of the defendant In referring to which he deposed as follows: "That since the making of such affidavit I have had a conversa tion with one of the attorneys for the nlalntiff herein, and have been by him shown certain papers with a view of Western Union "Day Letters' ' and "Night Letters" are the most eco nomical method of doing business over great distances. Fifty words at tele graphic rapidity and the preferential attention of the receiver assured. They help orders. They assist shipments. They make and hold business. They represent economy. As aids to modern business they are working daily wonders. THE WESTERN UNION TELEGRAPH COMPANY refreshing my memory as to the con tents of the affidavits heretofore men. jtioned; that at the time I made said I affidavit I had In mind either a com ! munication In person or by letter; ! that I am now Informed that the al leged communication and inuiry as to the address 'of the residence and abode of the defendant was by telephone; that I had at said time been Informed that the defendant had gone to a nor mal school to take a course therein, but that my memory does not carry me at this time to state whether or not I was informed as to what normal school the defendant attended; that as the conversation over the telephone took place a long time ago, and as it is possible that the said conversa tion and Inquiry did take place, but that if It did. my recollection now is the same as it was at the time I made the first. mentioned affidavit, to wit, that I do not now remember the con versation in question, although I do remember that at that time I had been informed that the defendant was in some normal school." The foregoing Is deemed a fair sy nopsis of the material statements con tained in the several affidavits offered by the respective parties, and from the showing thus made the question to be considered is whether or not the plaintiff's sworn declaration as to the defendant's residence evidences such a degree of fraud practiced by him In order to make It appear that the court had acquired jurisdiction over her person, as would render a refusal to set aside the decree and to permit an answer to be filed an abuse of discretion. The statute declares that a court .in its discretion may "at any time within one year after notice thereof, relieve a party from- a judg ment, order or other proceeding taken against him through his mistake, in advertance. surprise, or excusable neglect." L. O. L. section 103. The decree of divorce was given April 15, 190i, and this motion was not Inter posed until April 18, 1910. It will be remembered that the defendant's af fidavit states that prior to January J, 1910, she had no notice, knowledge or information that a decree of divorce had been rendered, and had never re ceived a copy of the summons or com plaint in any suit instituted for that purpose. If by the use of the word notice," In the section of the statute referred to, the legislature intended to give to the term its technical sense, the enactment, without employing many more words, could have pro vided that "at any time within one year after a judgment was entered" the court might set it aside for the reasons stated. Since the language suggested ha3 not been employed we believe the word "notice" shoi'ld be construed to mean "knowledge," and such being the case the application herein was made within the time lim ited. Fildew v. Milner, 109 Pac. 1092. As many of the defendant's relatives in Wisconsin lived near the plaintiff's kinsmen, he could- have ascertained her place of residence and mailed her a copy of the complaint and summons. It will be kept In mind that In the affidavit for the service of process by publication the plaintiff states that he obtained his information rtspect ing the defendant's residence. In part from the woman with whom It ap pears he came to the Pacific Slope. whom he subsequently married, and who may have been the cause of the inhuman treatment alleged in the complaint as the basis for his suit for divorce. Arthur H. Johnson's first affidavit, offered in support of the motion herein, contradicts every state ment contained In the plaintiff's sworn declaration as to a part of the source of his Information regarding the de fendant's residence. Johnson's second affidavit, made at plaintiff's request, is very guarded but considering them both in their proper relation to each other we think the latter affidavit does not sufficiently overcome the positive assertions to be found In the former. Looking at the entire case as made by the affidavits we feel satisfied that though there was a studied effort on plaintiff's part to comply with the several retirements of the letter of the statute so as to make the record In the divorce suit appear valid, the spirit of the law was wilfully violated by him and no notice was given to the defendant of the attempt to secure a dissolution of the marriage. The deduction thus reached places the woman, whom the plaintiff now claims to be his wife, in a serious so cial condition, but believing she Is not faultless the consequences must fall upon her. If, however, she Is an in nocent vlctom, the effect of the deter mination cannot be mitigated, for In nearly every punishment that follows a violation of the law some guiltless person who Is a relative of the ac cused party necessarily suffers hu miliation for the sentence which is imposed. If by cross complaint the defendant sought a divorce and alimony her ap plication to set aside the decree herein might afford some ground for denying the motion interposed for that pur pose, but the prayer of her' answer Is that this suit be dismissed. Believing that plaintiff deceived the court when the divorce was granted, and that such a showing of his con duct lias been made that a denial of the motion to set aside the decree amounts to an abuse of judicial dis cretion, the action of the court In this respect is reversed, the decree set aside, leave Is granted to tile the answer tendered and the case Is re mander for such further proceedings as may be necessary not Inconsistent with this opinion. Hutching t. Royal Unlierj. Decided October 10, 1911. George Hutchlngs, respondent, v. Royal Bakery and Confectionery com pany, a corporation, appellant. Ap- .peal from the circuit court for Multno mah county, the HonoraDie i,. Gantenbeln, Judge. Thomas Mannlx (Wilbur & Spencer, A. M. Dibble, W. E. Farrell, on the brief) for appellant. T. J. Hewitt (A. R. Mendenhall, T. J. Hewitt, Charles Stout, on the brief) for respondent. Bean, J- Affirmed. This is an action for damages for personal Injuries From an order granting plaintiff a voluntary nonsuit, defendant appeals. The defendant filed a demurrer to the complaint and upon the same being overruled, issues were Joined and the cause came on for trial before a Jury. Three witnesses were sworn and testified on behalf of plain tiff. To the question, as to whether or not plaintiff's injuries were perma nent, propounded to Dr. A. W. Moore, one of the witnesses, defendant's counsel objected for the reason that the complaint did not allege perma nency of plaintiff's injuries, Upon a Electric Rubber Hose costs a little more than ordinary hose. It lasts three times as long. It will not crack, split, kink or burst. Processes of making Electric Rubber Hose are protected by U. S. patents. Imitation has to cease where durability and efficiency begin. Don't buy your garden hose until you let us demonstrate to you the wonderful qualities of the hose that can't be duplicated o' equalled. SALEM HARDWARE COJIPAXY ruling thereon adverse to the plain tiff, he moved the court for an order granting him a voluntary nonsuit which was allowed over defendant's objection, upon the ground that the law did not authorize the same. Bean, J. The defendant contends; first, that the plaintiff was not en titled to a voluntary nonsuit after a trial upon the demurrer unless he filed an amended complaint; second, that he was not entitled to the same after the commencement or during the trial of the cause. L O. L. sec. 1S2, provides that a Judgment of nonsuit may be given against the plaintiff, (1) on motion of plaintiff, at any time before trial, unless a counterclaim has been pleaded as a defense; (2) On motion of either party upon the writ ten consent of the other; (3) On mo tion of the defendant, when the action Is called for trial, and the plaintiff fails to appear, or when after the trial has begun, and before the final submission of the cause, the plaintiff abandons it, or when upon the trial the plaintiff falls to prove a cause suf ficient to be submitted to the Jury. At common law the plaintiff could, as a matter of right, take a nonsuit at any time during the progress of the trial, and this right continued until after the verdict. Currle v. Southern Pacific Co., 23 Or. 400, wherein Mr. Chief Justice Lord quotes Justice Black as saying, "There is no case which decides that the plaintiff may not become nonsuited on his own motion, or that he may not, if he pleases discontinue or withdraw his action"; citing Blair v. McLean, 25 Pa. St. 75. "Under the earlier English decisions plaintiff might become non suit even after verdict if dissatisfied with the damages awarded by the Jury. But tfie rule was changed by 2 Hen. IV, c. 7, providing that 'after verdict a plaintiff Bhall not be non suit'"; 14 Cyc. 400. Statutes differ, and the practice varies In the different states. In many of the states the statutes provide, that plaintiff tf he desires to suffer a non suit, must do so, "before the cause Is finally submitted to the court or jury," or "before the Jury retire," or "before the final submission of the cause. This right being one given by statute, is believed to be absolute, and one which the court has no right to deny. Both of these classes of statutes are very generally construed to mean that the plaintiff is not entitled as of right to take a non-suit, after the cause has been submitted to the jury or the court. It Is held, however, that after the legal right on the part of plaintiff has ended, the court may In its dis cretion permit plaintiff to recall such submission and dismiss without preju dice; and In such case, the action of the court unless It has abused Its dis cretion, is no ground of error: 14 Cyc. 402, 403. In commenting upon the matter of a nonsuit, In re Petition of Butler, 101 N. Y. 307, at page 309, Mr. Justice Alexandre Kid Gloves. Kayser Silk Gloves, Modart Corsets, Warner's Rust Proof and Red Fern Corsets, Kaysers Silk Hose, Onyx Hosiery, Harvard Mills Knit Underwear, Carter's Knit $ Underwear, Richardson's Linens, Colgate's and Rodger and Gallet ! Perfumes, and Toilet Waters, Hurd's Stationery, Max Held's Linen i Waists, Keiser s Ladies Neckwear, Geisha Waists. 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