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title, or having in equity the right to the possession thereof as against the plaintiff in such action, such equitable right of possession may be pleaded by answer in such action, or set up by bill in equity to enjoin such action or execution upon any judgment rendered therein; and the right of such equitable owner to defend his possession in such action, or by bill for injunction, shall not be barred by lapse of time while an action for the possession of such real property is not by the provisions of chapter II of title I of this code. [L. 1862; D. Cd. § 378; L. 1878, p. 25, § 1; H. C. § 382.]

LIMITATIONS OF SUITS IN EQUITY.In cases of concurrent jurisdiction, equity follows the law as to the statute of limitations, but in cases of purely equitable rights equity is not bound by the statute, and only acts in analogy to it: Hall v. Russell, 3 Saw. 514.

Thus, the same period which will bar an action for the recovery of real property will bar a suit touching a claim or interest therein: Springer v. Young, 14 Or. 285, 12 Pac. 400.

After the repudiation of a trust, of which the cestui que trust had notice, an adverse holding for the statutory period will prevent the bringing of a suit to declare the trust in equity: Raymond v. Flavel, 27 Or. 238, 40 Pac. 158; Springer v. Young, supra. A suit to re-establish a lost instrument, or undertaking, is barred by the same period that an action upon the undertaking is barred: Howe v. Taylor, 6 Or. 293.

But in cases which come purely under equitable cognizance the statute of limitations has no application, and in determining whether or not a claim for equity is stale, the court is not confined to the statutory period, but may refuse or grant relief in cases where the delay is less or greater than that named in the statute: Neppach v. Jones. 20 Or. 493, 26 Pac. 569, 23 Am. St. Rep. 145; Loomis v. Rosenthal, 34 Or. 585, 57 Pac. 55; Sedlak v. Sedlak, 14 Or. 540, 13 Pac. 452.

Before the amendment of the mining laws of the state in 1898, the interest ac

quired by a locator was not real property, and a suit for the determination of such interest was not governed by the limitations of actions for real property: Herron v. Eagle Min. Co. 37 Or. 157, 61 Pac. 417.

In Anderson v. Baxter, 4 Or. 110, it is held that a suit to foreclose a mortgage is not "a suit for the determination of any right or claim to, or interest in, real property" within the provision of this statute. The provision here that "this section shall not be construed so as to bar an equitable owner from possession of real property,' etc., does not abrogate the principle announced in Hill v. Cooper, 6 Or. 182, that the fact that a party relying upon his legal defense in an action at law is not precluded from thereafter asserting his equitable title in an original suit in equity: Spaur v. McBee, 19 Or. 80. 23 Pac. 818. LIMITATION IN CASES AFFECTING PUBLIC LANDS.-Before the amendment of this section in 1878 the limitation in regard to setting aside, cancelling, annulling, or otherwise affecting a patent to lands issued by the United States was five years. It was held under that provision that this part of this section was intended to apply only to controversies arising under § 517, post, between rival claimants to the same tract, as patentees of the state, or of the United States: Baker v. Woodward, 12 Or. 18. 6 Pac. 173.

This provision should be applied to suits in equity in the United States courts: Hall v. Russell, 3 Saw. 516.

§ 393. In Whose Name Suit to be Prosecuted.

Every suit shall be prosecuted in the name of the real party in interest, except as in this section otherwise provided. An executor or an administrator, a trustee of an express trust, or a person expressly authorized to sue by statute, may sue without joining with him the person for whose benefit the suit is prosecuted. A trustee of an express trust within the meaning of this section shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. [L. 1862 ; D. Cd. § 379 ; H. C. § 383.]

REAL PARTY IN INTEREST.-See note to § 27, ante.

An individual taxpayer may maintain a suit to enjoin the illegal diversion of public funds by a public official when it appears that the result of such diversion will be to increase the rate of taxation to be borne by all taxpayers: Burness v. Multnomah County. 37 Or. 460, 60 Pac. 1005; Brownfield V. Houser, 30 Or. 534, 49 Pac. 843. But unless some personal injury is shown

such party can not bring suit in his own name: Sherman v. Bellows, 24 Or. 553, 34 Pac. 549; State v. Pennoyer, 36 Or. 209, 37 Pac. 906, 25 L. R. A. 862; State v. Lord, 28 Or. 498, 43 Pac. 471.

But where funds have already been misapplied and are gone, the proper party to complain is the injured corporation either in its own name, or on the relation of some proper person: Brownfield v. Houser, 30 Or. 534, 49 Pac. 843.

$ 394. Plaintiffs and Defendants; Who May Be.

All persons having an interest in the subject of the suit, and in obtaining

the relief demanded, may be joined as plaintiffs, except as in this title otherwise provided. Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein. [L. 1862 ; D. Cd. § 380; H. C. § 384.]

JOINING PARTIES.-Plaintiff may join in his suit to enforce her right to land, and obtain the legal title from one party, any other parties who may be in possession claiming adversely to him: Weiss v. Bethel, 8 Or. 527.

Persons whose property will be affected by the levy of a tax may join as plaintiffs in enjoining the collection of such tax: Stingle v. Nevel, 9 Or. 65.

The owner of a state or county warrant is a necessary party to a suit to enjoin its

payment: State v. Metschan, 32 Or. 381, 46 Pac. 791.

When it appears from the record that the real merits of the suit can not be determined without essentially affecting the rights of persons in the subject-matter, who are not parties, and whose names nowhere appear in the record, the court will refuse to examine the facts and dismiss the complaint for want of parties: Beasley v. Shively, 20 Or. 508, 26 Pac. 846.

See, also, § 41 as to bringing in additional parties.

§ 395. Who Must be Joined as Plaintiffs or Defendants—Numerous Parties. Of the parties to the suit, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff can not be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole. [L. 1862 ; D. Cd. § 381; H. C. § 385.]

This section does not apply to actions at law. There is no provision by which persons, without their consent, can be made parties in actions at law: State Ins. Co. v. Oregon Ry. & Nav. Co. 20 Or. 568, 26 Pac. 838.

By means of this section one or more members of an unincorporated association

may sue for the benefit of the whole, to enforce a right in favor of the association which is cognizable in equity, and where the members comprising it are so numerous that it would be impracticable to bring them all before the court: Liggett v. Ladd. 17 Or. 94. 21 Pac. 133; Trustees v. Adams. 4 Or. 88.

§ 396. What Provisions Relating to Law Actions Apply to Suits in Equity. Sections 28, 30, 32, 33, 37, 38, 40, and 41 of chapter III of title I shall apply to suits in equity. The provisions of chapters V to IX, inclusive, of title I and of chapter I of title IV shall apply to and govern the mode of proceedings in suits, except as otherwise or specially provided in this title. [L. 1862 ; D. Cd. §§ 382, 385; H. C. §§ 386, 389.]

An amendment of any of the sections in regard to procedure in law actions here made applicable to suits in equity will also amend the procedure in suits in equity: Bailey v. Malheur Irrig. Co. 36 Or. 58, 57 Pac. 910.

§ 397. Venue of Suits.

Suits in equity in the following cases shall be commenced and tried in the county where the subject of the suit, or some part thereof, is situate:1. For the partition of real property;

2. For the foreclosure of a lien upon real property;

3. For the determination of an adverse claim, estate, or interest in real property, or the specific performance of an agreement in relation thereto..

In all other cases, the suit shall be commenced and tried in the county in which the defendants, or either of them, reside, or may be found at the commencement of the suit: Provided, that if none of the defendants reside in this state, the suit may be tried in any county in the state which the plaintiff may designate in his or her complaint: And provided further, that in any suit for the dissolution of the marriage contract the same may be commenced and tried in any county of this state in which either party to the suit resides: [L. 1862; D. Cd. § 383; L. 1889, p. 134; H. C. § 387.]

A suit to enforce the lien of a mortgage is a local one and can only be brought in the county where the land lies: Swift v. Meyers, 37 Fed. 40; The Holladay Case, 29 Fed. 231.

A suit for the specific performance of a contract to purchase land is one in per

§ 398. Change of Venue.

sonam and not in rem, and may be brought in a county other than that in which the land lies, notwithstanding this section: Johnston V. Wadsworth, 24 Or. 498, 34 Pac. 13.

As to the venue of actions at law, see § 42, ante, et seq.

The court may change the place of trial on the motion of either party to the suit, where it appears from the affidavit of such party, either,

1. That the suit has not been commenced in the proper county; or, 2. That the judge is a party to, directly interested in, the event of the suit, or connected by consanguinity or affinity within the third degree, with the adverse party or those for whom he prosecutes or defends; and,

3. That the motion is not made for the purpose of delay.

[L. 1862;

Such change may be taken at any time before answer, and not otherwise, and in the manner and with like effect as in an action. D. Cd. § 384; L. 1865, p. 39, § 9; H. C. § 388.]

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§ 399.

former was induced to come within the county where the suit was begun, and process served upon him, where no injury was occasioned thereby, is not such fraud as to amount to an abuse of the process of the court for which relief will be granted: Bank of Ogden v. Davidson, 18 Or. 66, 22 Pac. 517.

The defendant waives his objection to the venue of the suit by not raising it before trial on the merits: Johnston v. Wadsworth, 24 Or. 498, 34 Pac. 13.

More Than One Defendant, Service of Summons, How Made.

When there is more than one defendant in the suit, service of the summons may be made by serving only one copy of the complaint, the same to be served on the defendant designated by the plaintiff or his attorney by a direction indorsed on such summons. [L. 1862; D. Cd. § 386; L. 1885 (special session), p. 25; H. C. § 390.]

The requirement that the plaintiff shall indorse upon the summons the defendant to be served with a copy of the complaint may be waived and where defendant appears and

answers, and a trial is had upon the merits. an objection for the failure to so indorse the summons comes too late upon appeal: Ankeny v. Blackiston, 7 Or. 413.

$ 400. Service of Summons by Publication.

In addition to the cases enumerated in the subdivisions of section 56,

service of the summons may be made by publication in the following

cases:

1. When the subject of the suit is real or personal property in this state, and the defendant has or claims a lien or interest actual or contingent therein, or the relief demanded consists wholly or partly in excluding the defendant from any lien or interest therein;

2. When the suit is for divorce, in cases provided for in chapter VIII of this title. [L. 1862; D. Cd. § 387; H. C. § 391.]

$ 401. Objections Which May be Made on Trial.

The objection to the jurisdiction of the court, or that the complaint does not state facts sufficient to constitute a cause of suit, if not taken by demurrer or answer, may be made on the trial. [L. 1862; D. Cd. § 388; H. C. § 392.]

As to similar objection in law actions, see § 72, ante.

OBJECTION ΤΟ JURISDICTION in equity may be waived by the conduct of the defendant, and an objection on the ground that an adequate remedy at law exists, comes too late, after the defendant has, by answering, put himself upon the merits, the pleadings suggesting no defense of this nature: Kitcherside v. Meyers, 10 Or. 21.

Where the defendant does not challenge the plaintiff's right to proceed in equity by an appropriate plea, and himself prays for equitable relief, the objection that equity has no jurisdiction of a suit to remove a cloud from title because plaintiff, who holds the legal title, is not in actual possession, is waived: O'Hara v. Parker, 27

Or. 171, 39 Pac. 1004; State v. Blize, 37 Or. 410, 61 Pac. 735.

In a suit to determine an adverse claim to real estate after defendant has filed a plea in abatement which was overruled, and answered over, and in his second answer, besides answering to the merits, also raised the same questions of jurisdiction in his former plea, it was held that since, under this section, objection to the jurisdiction may be taken by answer, defendant did not waive his objection by filing the second answer; the trial upon the second answer being in effect a retrial as to the jurisdiction on the amended answer, and hence the appellate court must try the case de novo on the amended complaint: Moore v. Shofner, 40 Or. - 67 Pac. 511.

§ 402. Counterclaim, What its Character Must Be.

The counterclaim of the defendant shall be one upon which a suit might be maintained by the defendant against the plaintiff in the suit; and in addition to the cases specified in the subdivisions of section 74, it is sufficient if it be connected with the subject of the suit. Sections 91, 92, 93, and 94 shall not apply to suits in equity. [L. 1862; D. Cd. § 389; H. C. § 393.]

For counterclaims, generally, see §74, ante.

COUNTERCLAIMS IN EQUITY.-In a suit in equity, where plaintiff claims equitable title to real property, of which defendant is alleged to hold the legal title, basing the claim upon the grounds of agency, fraud, and trust, and the defendant denies all these grounds and sets up ownership in himself in the premises in fee, an allegation in the answer that the defendant has expended a certain sum of money in payment for the land, or in making improvements thereon, is not such a plea of counterclaim as will defeat a motion to dismiss: Dove v. Hayden, 5 Or. 501.

An allegation in the answer, in the foregoing case, that the defendant is the owner of the premises in fee can not be treated as a counterclaim. because it is not connected with the subject of the suit within the meaning of this section: Dove v. Hayden, 5 Or. 501. The matter upon which a counterclaim may be made must be matter upon which a suit might be maintained: Sears v. Martin, 22 Or. 311, 29 Pac. 890. Matter, therefore, which is the subject for a claim for speculative and unliquidated

damages in an action at law, can not be made the subject of a counterclaim in equity. A claim for damages, in the answer, for cutting growing timber, etc.. upon the premises in dispute is not a counterclaim: Dove v. Hayden, 5 Or. 501. To the same effect, see Burrage v. Bonanza G. etc. Min. Co. 12 Or. 169, 6 Pac. 766.

So, in a suit to foreclose a mortgage, a claim for a certain sum for lumber sold and delivered to plaintiff by defendant at plaintiff's special instance and request can not be made the subject of counterclaim: Sears v. Martin, 22 Or. 313, 29 Pac. 890.

In a suit for specific performance and accounting, a counterclaim for unliquidated damages can not be set up: Conn v. Conn, 22 Or. 452, 30 Pac. 230.

In an action to enjoin defendants, who owned a placer mine just above plaintiff's

on

the same creek, from floating debris down on plaintiff's claim, a counterclaim for damages occasioned by water being backed up on claim of defendants in consequence of a dam built across the creek below defendant's mine by plaintiff, can not be sustained, because the subject of such counterclaim was not connected with

the subject of the original suit. One trespass can not be pleaded as a counterclaim or set-off against another trespass: Miser v. O'Shea, 37 Or. 231, 62 Pac. 491.

In a suit for divorce the defendant may, by way of counterclaim demand and obtain the affirmative relief of a divorce: Dodd v. Dodd, 14 Or. 338, 13 Pac. 509.

EFFECT OF DISMISSING COMPLAINT. -The dismissal of a complaint in an equitable suit, after an answer has been filed containing a counterclaim on which affirmative relief is asked, does not operate as a nonsuit, but leaves the case to proceed upon the counterclaim: Maffett v. Thompson, 32 Or. 546, 52 Pac. 565.

$ 403. What Causes of Suit May be United.

The plaintiff in a suit may unite several causes of suit in the same complaint, when they all arise out of,

1. The same transaction, or transactions connected with the same subject of suit;

2. Contract express or implied;

3. Injuries with or without force to property;

4. Claims to real property, or any interest therein, with or without an account for the rents and profits thereof;

5. Claims to personal property, or any interest therein, with or without an account for the use thereof;

6. Claims against a trustee by virtue of a contract, or by operation of law.

But the causes of suit so united must all belong to one of these classes, and must affect all the parties to the suit, and not require different places of trial, and shall be separately stated. [L. 1862; D. Cd. § 390; H. C. § 394.]

As to what causes may be united in actions at law, see $94.

A complaint by a large number of plaintiffs, having independent claims against the defendants, secured by a mortgage in favor of the plaintiffs' trustee, and which complaint in addition to the allegations showing the liability to the plaintiffs severally, charged that one of the defendants, who was the attorney for said trustee, made fraudulent representations to the plaintiffs concerning the solvency of their claims and other material facts of which they were ignorant, and that they were thereby "by reason of their relations of trust and con

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fidence in said attorney and relying upon him," etc. induced severally to assign their claims to him for much less than their value, and prayed to have the assignments set aside, does not show such a wrong to the plaintiffs jointly, or as a class, as will protect the complaint against a demurrer for misjoinder of causes of suit. The suit can be maintained if it distinctly appears that the representations were made to the plaintiffs as a class, jointly, and were acted upon by them in a collective capacity: Powell v. Dayton. S. & G. R. R. Co. 13 Or. 446, 11 Pac. 222.

· Arrest and Bail Substituted.

The writ of ne exeat is abolished, and instead thereof the plaintiff in a suit may have the defendant arrested and held to bail in like manner and with like effect as provided in chapter I of title IV of this code. A cause of arrest in a suit shall be the same as those specified in section 260, so far as the same may exist, and not otherwise. [L. 1862; D. Cd. § 391; H. C. $395.]

$ 405.

CHAPTER II.

OF ISSUES, THEIR TRIAL, AND THE MODE THEREOF.

Chapter II of Title I, Application of to Suits.

The provisions of chapter I of title II of this code shall apply to suits,

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