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-
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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.
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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
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COTTTAGE GROVE, ORE.
the duty thus devo'ving upon it, ex
ercises Judicial functions erroneous
ly. 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. It follows that the Judgment
appealed from should be affirmed and
It is so ordered.
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