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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Oct. 19, 1911)
DAILY CAPITAL JOOUTAX, SALEM, OREGON, THURSDAY. OCTOBER 1. 10' I. PAGE SIX SUPREME COCBT BECISIOX. (Continued from Page 3.) ahead and perform the work under the (llrcrtion and superintendence of defendant. Mrs. Hassan, and, accord ing to her wishes, purchase the nec essary materials, and that she would pay for them. On June 11, 1908, plaintiff secured the work, under these conditions, and labored and furnished other labor and materials to the amount claimed In the com plaint. The work seems to have progressed from time to time with a continual series of changes of plans on the part of Mrs. 'llassam, until August C, 1908, when plaintiff and bis workmen left, and plaintiff did not return until a few days later, when he found that Mrs. Hassan had employed other workmen to complete the building. We are of the opinion that the de lay of plaintiff in completing the building was caused primarily by Mrs. Hassan's failure to provide and have ready the roofing, which she had undertaken to provide, for the continuance of the work; and that, while nearly every fact above stated is disputed by her, the preponder ance of the testimony Is In favor of plaintiff s contention. There remains but one serious con tontlon and that is, whether, under the facts above stated, plaintiff Is an original contractor within the mean lng of the law, and, If so. whether he has sufficiently pleaded performance of his contract. Section 7420 I,. O. L. makes It the duty of every orglnal contractor to file his lien within 00 days from the completion of his con tract, and of every mechanic, artisan, etc., or other person, to so file within 30 days after the completion of the alteration or repair, or after he has ceased to labor thereon from any cause, or after ho has censed to fur nish materials herefor. The lien In question was filed 57 days after the Inst work was done, and unless plaintiff Is an original contractor, his claim was filed too late to be within the statute. If plulntlff was engaged merely to work for an Indefinite time under the direction of defendant, he would be a mere laborer and his rights to a lien would expire within 30 days from the last day that he performed work. An orglnal contractor, within the meaning of the mechanic's lion law, la one who furnishes labor, or lulxr and materials, upon a contract direct with the owner: liolsot on Mech. Mens, Sec. 220. The contract need not be express, but may be Implied. The complaint In this cane states substantially a contract to niter and repair n dwelling house and to per form and furnish the labor to so al ter and repair it. So far It stateBnn original contract with tho owner to do a particular thing, but It falls to Btnto that tho contract was complet ed or to give any reason why It was not completed, or to state the dat) of the completion of the building. In Curtis v. Sestanovich, 2B Or. 107, which involved a lien for labor and materials, this court held that It was unnecessary to state In tho no tice of Hen the date of the comple tion of the building If, In fact, It was completed within 30 days, but In that case the omission to state the date of completion was In the notice and not in tho complaint. Here both the no tice and the complaint are silent on that subjpct. Section 7420 makes it a prerequisite of a valid, original contractor's lien that It shall be filed within 0 days after the completion of the cotnract and a complaint which does not show this fact does not Mate a cause of suit. The suit will be dismissed without prejudice to any action nt law that plaintiff may see lit to Institute. Trice y. Warner, et nl, Marlon Con nly. Decided, October 10, 1911. .1. I.. Price, appellant, v. A. 1.. War ner, A- I,. Clearwater and S. A. Jef fersnn, ilufuiidantH. A. I,. Clearwater, respondent. Appeal from tho circuit court fur Marlon county. The lion. Geo. li. .Burnett, judge. Argued and submitted Sept.-28, 1911. C. L. Me- Nary and (John H. McNary and W. C. Wlnslow, on brief) for appellant. S. T. Richardson and W. E. Keys, for respondent. McBrlde, J. Affirmed. Defendant Clearwater was the in- dorser of a promissory note, execut ed by Albert Warner. It was duly presented for payment and dishon ored. The note was payable In Sa lem, where defendant resided. The person giving the notice of dishonor also resided in Salem. The day Bub sequent to the presentation of the note for payment, plaintiff's agent called at defendant's place of busi ness for the purpose of giving him notice of the dishonor . of the note, and found that he was temporarily absent from the city. He repeated his visits for four or five days, and on each day found him still absent. Afterwards he saw him and gave him notice. Section r.929 L. O. L. is as follows: "The notice may be In writing, or merely oral, and may be given In any terms .which sufficiently identify the instrument and Indicate that it has been dishonored by non-acceptance or non-payment. It may in all cases be given by delivering it personally or through the malls." Section 5936 reads: "Where the person giving and the person to receive notice reside in the same place, notice must be given within the following times: (1) If given at tho place of business of the person to receive notice, it must be given before the close of business hours on the day following: (2) If given at his residence, It must be given before the usual hours of rest on the day following; (3) If tent by mail, It must he deposited in the postolllce In time to reach him In usual course on the day following." Section .ri9li reads: "Delay In giving notice of dishonor Is excused when the delay Is caused by riremiirtances beyond the control of the holder and not Imputable to his default, miscon duct, or negligence, h?n the cause of delay ceases to operate, notice must be given with reasonable dili gence." At the conclusion of plaintiff's tes timony, the court, on motion of de fendant, granted a nonsuit and plain tiff appeals. Mcflride, J. Taken in connection with the other sections of the stat ute quoted above, the word "may" in Sec. 5929 should ' be construed to mean "must." The conjunction "or" Indicates the alternative and Is equivalent to "cither", as if to say, "either one thing or another thing," must be done: (Sheppard . City of New Orleans, 51 La. Ann. 847. I'lalntlff was required by Sec. 5936 supra to give notice the day follow ing the dishonor of the note, cltlrer by mall or personally, unless the de lay were excused by the contingency montloncd In Sec. 5910. The law does not excuse a delay caused by the Impossibility of giving notice in a particular manner but only excuses a delay caused by the impraticablllty of giving notice at all. In this case a notice sent through the Riall would have fulfilled every demand of the statute. The plaintiff asks that the delay be excused not because circumstances beyond his control rendered It Impracticable to give notice sooner but because he was unable to give It sooner In the manner attempted. The Judgment of the circuit court is amrmed. Ilnrigflon and llodirilon v. Goodspoed, ft nl, Tillamook County. Decided, October 3, 1911. George N. Hodgdon and Marvin Hodgdon, respondents, v. H. F. Goodspeed, as county Judge of Tilla mook county, Oregon; J. C. Holden. ns county clerk of Tillamook coun ty, Oregon and U D. Krake, defen dants. L. D. Krake, appellant. Ap peal from the circuit court forTHla mook county. Hon. Win. Galloway, Judge. Argued and submitted Sep tember 19, 1911. Holmes & Hamlley on brief for respondents. Oak No lan for appellant. Moore, J. Af firmed. This if a special proceeding to re- Woman's Ills Many women lufler needlessly from girlhood to woman, hood and from motherhood to old age with backache, dizziness or headache. She hcoomes broken-down, sleep less, nervous, irritable and feels tired (rom morning to nitfht. When puins and aches rack the womanly system at frequent intervals, ask your utiiihbor about Dr. Pierce's Favorite Prescription 7 As Prescription has, tor over lo years, been curlni delicate, wreak, pain-wracked women, by the hundreds of thousands and this too In the privacy ot their homes without their hav Ini to submit to Indelicate questionings and offensively repugnant examinations. Sick women are invited to consult in confidence by letter fret. Address World's Dispensary Medical Ass'n, R.V. Pierce, M. D., Pres't, lSutlulo, N. Y. Dm. I'ibrcb's Crkat 1'amii.y Doctor Hook, The I'eoi's's Common Seme Medical Adviser, newly revised up-to-date edition 1000 pages, answers in I'lais hsglish hosts ol delicate questions which every woman, single or married, ought to know about. Sent fire to any address on receipt of 31 one-cent ht.mips to cover cost ol wrapping and mailing only, in French cloth binding. view the action of an inferior tribu nal. Pursuant to a petition for a writ of review the writ was Issued and the return shows that L. D. Krake commenced an action in the county court of Tillamook county against George N. Hodgdon and Mar vin Hodgdon to recover $367 as dam ages for an alleged breach of an agreement An amended complaint was filed October 25, 1909, and ser vice thereof acknowledged on that day but no order was ever made pre scribing the time in which an an swer should be filed. The averments of the amended complant not Laving been controverted the county clerk, on the plaintiff's written application, recorded a default December 18, 1909, and thereupon entered Judg ment against the defendants for the sum demanded. Three days thereaf ter a motion was Interposed to set aside the Judgment on the grounds that It was rendered through sur prise, inadvertance and excusable neglect, In that an agreement had been made by the parties whereby no answer was to be filed during nego tiations for a settlement of the con troversy which were then pending, nor until one of the defendants' at torneys, who was absent, returned not later than December 31, 1909, and that he had not arrived when the Judgment was entered. The motion was supplemented by an affidavit and an answer to the merits was ten dered. Plaintiffs' counsel filed a counter affidavit which sets forth that It was understood that no answer was to be filed until December 15. 1909. Defendants' counsel on December 29, 1909, filed another motion to set aside the Judgment for that no time had been fixed by the court In which to answer and that their clients had never been In default supplementing the application by :m affidavit. Tho county court on January 11. 1910, denied the motion, to review which order these proceedings were. Instituted by George N. and Marvin Hodgdon against H. P. Goodspeed and J. C. Holden as county judge and clerk respectvely and L. D. Krake. The record, papers, etc., having been certified up to the cir cuit court, the Judgment' of the coun ty court was annulled and the cause remanded with directions to fix a time In which the answer in such ac tion should be filed and from the lat ter Judgment Krake alone appeals. Moore, J. It Is insisted that the petition for the review did not state facts sufficient to authorize the Issu ance of the writ, in refusing to quash which an error was committed. A petition in such case must describe with convenient certainty the deci sion or determination of the inferior court, officer or tribunal complained of; set forth the errors alleged to have been committed; be signed by the plaintiff or his nttorney and veri fied by the certificate of an attorney of the court to the effect that he has examined the process or proceeding and the decision or determination therein, and that the same is errone ous as alleged In the petition. The petition, the sufficiency of which is assailed, alleges In effect that the de fendants In the proceeding, Good speed and Holden, are the county Judge and clerk respectively of Tilla mook county; sets out copies of all the papers filed In the action men tioned and the orders made and Judg ment rendered therein as hereinbe fore stated; avers that the county court exercised its Judicial functions erroneously and exceeded jts Juris diction to the Injury of the substan tial rights of the plaintiffs herein, setting forth In concise order the er rors alleged to have been committed. The petition Is also verified by the certificate of an nttorney of the court in the manner prescribed. The adverse parties and the court were thus advised of tho particular questions to be determined, and the errors alleged to have been coinmlt ed are assigned with particularity. You Realize Comfort In your Collars and Shirts when you got In tho habit of sending them to us to be Laundered. We "do them up" propertly, carefully, cleanly, and with perfect satisfaction to those who have to wear them. I,et us have your Laundry work for a week or two and you will be so satisfied with the results that you will always send it here afterwards. S.U.EM STEAM I.VlMUiY i:ti-l(6 South Liberty Street V : . ..v S'.-.-i. I'S; I li -.is ' '"MI'I il 1 I I III ,1L.. r v 1(7 1111,1) IIH.ll In tho esteem of all strong, healthy people, our bread Is regarded by "all who value good health as the bsot producer of brain, brawu and good digestion. Experience, care and palnstuklng skill are combined iu its making. CAPITAL BAKERY 439 Court St. The petition complied with the re quirements of the statute and was sufficient to authorize the Issuance of the writ- Southern Oregon Co. v. Coos County 30 Ore. 250; White v. Brown 54 Ore. 7. It Is maintained .that the circuit court did not have jurisdiction of the cauBe and for tha' reason an error was commtted in denying the motion to quash the writ. It Is argued that the entry of the judgment by the county clerk was a ministerial act, the performance of which cannot be reviewed. A ministerial act consists In the discharge of some duty en joined by law upon one or more per sons who. In obeying the rule pre scribed, exercise no judgment or dis cretion regard the matter. 5 Words & Phrases 4523. Review Is the statutory remedy, enacted In lieu of certiorari, and the writ and its return are employed to determine whether or not an Inferior court, officer or tribunal in the exer cise of Judicial functions has applied such power erroueously or has ex ceeded the jurisdiction conferred. L. O. L. Sec. 605. Judicial or quasi judicial acts only can be reviewed. Harris, Certiorari ,Sec. 4S; Thomp son v. Multnomah county 2 Ore. 34; Burnett v. Douglas County 4 Ore. 388. In an action arising upon con tract for the recovery of money or damages only, if p" answer be filed within the time limited, the clerk, upon the plaintiff's written applica tion therefor, Is lfcuired to enter the default and thereupon to give judg ment for the sum demanded against one or more of the defendants who have rendered amenable by appear ance or service of process. L. O. L. Sec. 185. In ente-ing a judgment upon default, the clerk acts in a ministerial capacity; exercises no judicial functions; and must con form strictly to the provisions of the statute or his proceedings will be without any bindini; force. Kelly v. Van Austin 17 Cal. 564. When the clerk is authorized to enter Judg ment upon default, but, in the em ployment of the power conferred makes a mistake as to the amount due plaintiff, the judgment Is not void but erroneous; but where he en ters a judgment which is wholly un authorized, the judgment is void. Ilond v. Pacheco 30 Cal. 530. When a void judgment Is called to the attention of a court in which it was entered it is incumbent upon that tribunal to purge its records of the nullly by canlling the entry. Huffman v. Huffman 47 Ore. 610; Rynearson v. I'nion County 54 Ore. 181. If upon application a void judg ment Is not set aside, the invalidity Is attempted to be upheld, whereby the court, in refusing to discharge Are You Sick? Are You Suffering? with rheumatism, neuralgia, head ache, backache, constipation, paraly sis, stiff Joints or muscles, drowsi ness or weakness, come now and be cured without drugs or medicine. Its here In Salem, not fur from your homo. It will cost you nothing to have a talk with Prof. S. Z. Hartley, room 7. liush-Hreyman building. Pnon 904 Great Chinese Doctor L. M. Hum Has medicine which will cure, any known disease. 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Though a void judgment can be collaterally assailed, the better rule, in our opinion, supports the princi ple that a writ of review will lie to cancel the entry of a void judgment when a court refus to perform that duty. 4 PI. & Pr. 49. We conclude that the trial court. had jurisdiction of the cause anu that no error was committed in re-1 fusing to quash the writ on that ground. I The remaining question Is vvhetii er or not the judgment entered by the county clerk against the defendants In the action, but who are plaintiffs herein, is void. It will be remembered that an amended complaint had been filed In the action but that no time had been prescribed by the court in which an answer should have been filed. The statute regulating the practice in such cases is as follows: "If the complaint be amended, a copy there of shall be served on the defendant or his attorney, and the defendant shall answer the same within such time as may be prescribed by the court; and If he omit to do so, the plaintiff may proceed to obtain Judg ment as In other cases of failure to answer." I.. O. L. Sec. "0. Due ser vice of the amended complaint had been admitted by defendants' coun sel so that jurisdiction of the subject matter and of the parties had been secured. As no time had been fixed in which an answer should have been filed, the defendants were not in default. If judgment had been rendered against them by the court, Instead of the clerk, It Is quite prob able that because they were not given all the time allowed by law to plead, the judgment would not have been a' nullity or subject to collateral at tack. Woodward v. Baker 10 Ore. 491; Altn.an v. School District 35 Ore. 85. Judgments in such cases, though considered irregular are not treated as void, on the ground that the parties being In court must take notice of all proceedings therein by which their Interests are affected, in so far as the court determined from an inspection of thf papers before It that the cause was ripe for judgment and any mistake In that particular constitutes only an error. This principle can have no appli cation to a county clerk in entering a default and judgment for, having no judicial power, he exercises only statutory authority and if he fails to observe the several requirements thereby imposed upon him or govern ing the proceedings, the judgment he attempts to enter is void. Kelly v. Van Austin, supra. Believing the Judgment, brought up to the circuit court for review, was void no error was committed in an nulling the entry and In remanding the cause with directions to fix a time in which the answer should be filed. 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