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CHAPTER II.

OF OFFER TO COMPROMISE, AND THE INSPECTION OF WRITINGS.

§ 532. Offer to Compromise.

The defendant may, at any time before trial, serve upon the plaintiff an offer to allow judgment or decree to be given against him for the sum, or the property, or to the effect therein specified. If the plaintiff accept the offer, he shall by himself or attorney indorse such acceptance thereon, and file the same with the clerk before trial, and within three days from the time it was served upon him; and thereupon judgment or decree shall be given accordingly, as in case of a confession. If the offer be not accepted and filed within the time prescribed, it shall be deemed withdrawn, and shall not be given in evidence on the trial; and if the plaintiff fail to obtain a more favorable judgment or decree, he shall not recover costs, but the defendant shall recover of him costs and disbursements from the time of the service of the offer. [L. 1862 ; D. Cd. § 511; H. C. § 520.]

OFFER OF COMPROMISE.-The compromise of doubtful rights, or voluntary settlements between parties, when characterized by good faith and a full disclosure of all the facts, are favored by the court. Such settlements will not be disturbed for any ordinary mistake, either of law or of fact, in the absence of conduct otherwise inequitable, since their very object is to settle all such possible error without judicial controversy. In any case a party claiming to set aside such a settlement must restore any property or rights derived under it. He can not repudiate the settlement, and at the same time hold on to the advantages it may have given him: Wells v. Marcus, 14 Or. 68, 12 Pac. 84.

The offer of compromise may be made as well in the answer as by separate writing, and if so made, service thereof is not necessary, plaintiff being presumed to take notice of all matters contained in the plead

§ 533. Inspection of Books and Papers.

ing: Hammond v. Northern Pac. R. Co. 23
Or. 157, 31 Fac. 299.

The offer need not provide for costs at all.
It is enough that it contains a sum for
which judgment is to be entered. If the
offer is accepted, it carries all the costs of
the action by force of other provisions of
the statute, provided it be for more than $50.
The fact that such an offer provides only for
accrued costs, and not for costs of entering
the judgment, does not render it ineffectual.
An offer merely "for the sum
specified" is sufficient: Hammond v. North-
ern Pac. R. Co. supra.

A judgment for a sum less than or equal
to the amount offered is not a "more favor-
able" judgment within the meaning of this
section: Hammond v. Northern Pac. R. Co.
supra.

If a party does not avall himself of this opportunity he should not be entitled to recover costs: Savage v. Savage, 12 Or. 473, 8 Pac. 754.

The court or judge thereof, while an action or suit is pending, may order either party to give the other, within a specified time, an inspection and copy, or permission to take a copy of any book, document, or paper in his possession, or under his control, containing evidence or matters relating to the merits of the action or suit, or the defense therein. If obedience to the order be neglected or refused, the court may exclude the book, document, or paper from being given in evidence, or if wanted as evidence by the party applying therefor, may direct the jury to presume it to be such as he alleges it to be; and the court may also punish the party so neglecting or refusing as for a contempt. This section is not to be construed to prevent a party from compelling another to produce books, documents, or papers, when he is examined as a witness. [L. 1862 ; D. Cd. § 512; H. C. § 521.]

A motion for a bill of particulars is within the sound discretion of the court, which will only be reviewed on appeal for abuse: Davis v. Hofer, 38 Or. 157, 63 Pac 56.

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CHAPTER III.

OF MOTIONS AND ORDERS.

§ 534. Order and Motion Defined.

Every direction of a court or judge made or entered in writing, and not included in a judgment or decree, is denominated an order. An application for an order is a motion. [L. 1862; D. Cd. § 513; H. C. § 522.]

to enter such order may insist as a matter of right upon its entry nunc pro tunc: Douglas County Road Co. v. Douglas County, 5

The determination of a court of record as to whether its orders have been correctly entered is not subject to review; but where the fact that the order was made is undis- Or. 406. puted, any person injured by an omission

§ 535.

Motions, Where and to Whom Made.

Motions shall be made to the court or judge as provided in other parts of this code. They shall be made within the circuit where the action or suit is triable, except when made to a judge of the court before whom the action is pending, and without notice, in which case an order may be made by such judge in any part of the state. [L. 1862; D. Cd. § 514; H. C. § 523.]

$ 536. Notice of Motion.

When a notice of a motion is necessary, it shall be served ten days before the time appointed for the hearing; but the court or judge thereof may prescribe, by order indorsed upon the notice, a shorter time. Notice of a motion is not necessary except when this code requires it, or when directed by the court or judge in pursuance thereof. [L. 1862; D. Cd. § 515; H. C. § 524.]

Notice of a motion is not necessary except when the code requires it, or when directed by a court or judge in pursuance thereof, but an order for an enlargement of the time for filing transcript on appeal is an order requiring notice, and when taken ex parte, and without notice, will be disregarded when the attention of the appellate court is called to the matter, and the appeal will be dismissed: Bush v. Geisey, 16 Or. 267, 19 Pac.

122.

The code does not require notice to be given in every case. The reason for such

notice is to prepare the opposite party, and inform him of the nature of the motion: Hosford v. Logus. 13 Or. 134, 11 Pac. 900. POWER OF COURT ΤΟ SHORTEN TIME.-This section does not authorize the court to shorten the time allowed by law for the justification of sureties on appeal, and when the transcript is filed in the supreme court before the time fixed by law for such justification, it must be stricken from the docket: Chemin v. East Portland, 19 Or. 512, 24 Pac. 1038.

§ 537. Refusal of Application for Order, Effect Of.

In an application for an order, made to a judge of the court in which the action, suit, or proceeding is pending, be refused in whole or in part, or be granted conditionally, no subsequent application for the same order shall be made to any other judge. A violation of this section is punishable as a contempt, and an order made contrary thereto may be revoked by the judge who made it, or vacated by the court or judge thereof in which the action, suit, or proceeding is pending. [L. 1862; D. Cd. § 889; H. C. § 525.]

VOL.I.-19.

CHAPTER IV.

OF NOTICES, AND SERVICE AND FILING OF PAPERS.

$ 538. Notices in Writing.

Notices shall be in writing, and notices and other papers shall be served on the party or attorney in the manner prescribed in this chapter, where not otherwise provided by this code. [L. 1862; D. Cd. § 516; H. C. § 526.]

$539. Service of Notices.

The service or deposit in the post office, when served by mail, may be made by any person other than the party himself. The proof of service shall be the same as the proof of service of a summons, and shall be returned with the original notice, or other paper of which service is made, at the time and place therein prescribed for the hearing or other proceeding to be had thereon. The service may be personal, by delivery of a copy of the notice or other paper to the party or attorney on whom the service is required to be made, or it may be as follows:

1. If upon an attorney, it may be made during his absence from his office by leaving the copy with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving it between the hours of six in the morning and nine in the evening in a conspicuous place in the office, or if it be not open to admit of such service, then by leaving it at the attorney's residence with some person of suitable age and discretion;

2. If upon a party, it may be made by leaving the copy at his residence between the hours of six in the morning and nine in the evening with some person of suitable age and discretion. [L. 1862; D. Cd. § 517; H. C. § 527.]

PROOF OF SERVICE OF SUMMONS: See § 62, ante.

ADMISSION OF SERVICE.-The county, as a body corporate to sue and be sued, has a right to admit service of a copy of a notice of appeal, and the clerk is the proper officer through whom to make such service: Read v. Benton County, 10 Or. 155.

A written acknowledgement of the service of a notice of appeal by one of the parties is insufficient to authorize the court to assume jurisdiction without proof of the authenticity of the signature. In case of an appeal on a jurisdictional question, the court will not presume that there was any proof beyond what appears in the record: Moffitt v. McGrath, 25 Or. 478, 36 Pac. 578.

Where an attorney acknowledges service of a notice of appeal in the following language: "State of Oregon, County of Multnomah. Service of the within notice by certified copy is hereby admitted, in Portland, Oregon, June 1, 1877. Alex Bernstein, Attorney for Defendant;" held, that the service was sufficiently proven; that his residence in the county need not appear by such acknowledgment: Lillienthal v. Caravita, 15 Or. 341, 15 Pac. 280.

SERVICE OF NOTICE.-A party to an action in a justice court is not authorized,

under this section, to serve or make proof of service of a notice of appeal: Williams v. Schmidt, 14 Or. 470, 13 Pac. 305.

Under this section a town marshal may serve a notice to take depositions, and the return of his acts should be made as a return on summons is made, to wit, by certificate and not an affidavit: La Grande Nat. Bank v. Blum, 27 Or. 218, 41 Pac. 659.

The return of service which is required to be made between certain hours must show when it is made: Lindley v. Wallis, 2 Or. 204.

A return which fails to show that the notice of appeal was left "between the hours of 6 in the morning and 9 in the evening" is insufficient: Rees v. Rees, 7 Or. 78.

A constable's return of the service of a notice is insufficient where it specifies that service was made within a certain county and state, but fails to show that it was made within the constable's own precinct: Hermann v. Hutcheson, 33 Or. 239, 52 Pac. 489.

Imperfect return of summons may be amended to conform to the fact: Barbre v. Goodale, 28 Or. 465, 43 Pac. 378; Weaver v. Southern Pac. Co. 30 Or. 348, 48 Pac. 171.

$ 540. Service by Mail.

Service by mail may be made, when the person for whom the service is made, and the person on whom it is to be made, reside in different places, between which there is a communication by mail, adding one day to the time of service for every fifty miles of distance between the place of deposit and the place of address. [L. 1862; D. Cd. § 518; H. C. § 528.]

This and the succeeding section provide for substituted service in derogation of the common law, and a strict and literal compliance with them is required to confer jurisdiction on the appellate tribunal: Fisk v. Hunt, 33 Or. 429, 54 Pac. 660.

§ 541. Deposit of Copy in Post Office.

SERVICE BY MAIL.-Such service is ineffectual where a copy, though the parties resided in different places, was mailed at the place of residence of the person on whom it was to be made: Fisk v. Hunt, 33 Or. 429, 54 Pac. 660.

In case of service by mail, the copy must be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid. The service shall be deemed to be made on the first day after the deposit in the post office that the mail leaves the place of deposit for the place of the address, and not otherwise. [L. 1862; D. Cd. § 519; H. C. § 529.]

§ 542. Appearance, How Made.

A defendant appears in an action or suit when he answers, demurs, or gives the plaintiff written notice of his appearance, and until he does so appear he shall not be heard in such action or suit, or in any proceeding pertaining thereto, except the giving of the undertakings allowed to the defendant in the provisional remedies of arrest, attachment, and the delivery of personal property. When the defendant has not appeared, notice of a motion or other proceeding need not be served upon him, unless he be imprisoned for want of bail, or unless directed by the court or judge thereof in pursuance of this code. [L. 1862; D. Cd. § 520; H. C. § 530.]

See $63, by which voluntary appearance is made equivalent to service.

APPEARANCES, GENERALLY. -A formal notice of appearance, under this section, is unnecessary, unless the right of the attorney to appear is challenged by the adverse party: Carter v. Koshland, 12 Or. 492, 8 Pac. 556.

Voluntary appearance is not limited and defined by the terms of this section, as one may appear otherwise than by answering, demurring, or giving written notice. The only purpose of this section is to define what shall constitute such an appearance as will entitle a defendant to be heard as a matter of right, and to have served on him all papers required by law to be served: Belknap v. Charlton, 25 Or. 41, 34 Pac. 758. When a defendant voluntarily appears in an action by demurring to the complaint, he thereby stops the running of the statute of limitation from the date of such voluntary appearance: Hawkins v. Donnerberg, 40 Or. 97, 66 Pac. 908.

A party may appear specially without submitting himself to the jurisdiction of the court: Kinkade v. Myers, 17 Or. 470, 21 Pac. 557; but when one appears and asks some relief which can be granted only on the hypothesis that the court has jurisdiction, the appearance is general, whether it be limited by terms or not; but if granting the relief would be consistent with a want

of jurisdiction, the appearance may be special without submitting to the jurisdiction for any other purpose. Thus, appearing and moving only to discharge an attachment because the action has been commenced in the wrong county, is a special and not a general appearance: Belknap v. Charlton, 25 Or. 41, 34 Pac. 758; but where one appears, even after judgment, and asks for some relief, as the opening of a default judgment, and asks permission to plead to the merits, such appearance is general, and the party thereby waives all irregularities in the service of process: Mayer v. Mayer, 27 Or. 133, 39 Pac. 1002. See, also, to the same effect, Towns v. Klamath County, 33 Or. 230, 53 Pac. 604.

A special appearance does not waive irregularities in the service of process: Belknap v. Charlton, 25 Or. 41, 34 Pac. 758.

Where a defendant entered his appearance, and afterwards withdrew the same, this section was applicable to his case, and no notice upon him of future proceedings was required: Wilson v. Blakeslee, 16 Or. 48, 13 Pac. 665.

The mere presence of the defenuant in court by an attorney will not prevent the rendition of a judgment against him in the justice court for want of an answer: Whipple v. Southern Pac. Co. 34 Or. 372, 55 Pac. 975.

§ 543. Service on Party Absent From State.

When a party is absent from the state, and has no attorney in the action or suit, service may be made by mail, if his residence be known; if not known, on the clerk for him. When a party, whether absent or not from the state, has an attorney in the action or suit, service of notice or other papers shall be made upon the attorney, if he reside in the county where the action or suit is pending, instead of the party, and not otherwise. [L. 1864; D. Cd. § 521; H. C. § 531.]

SERVICE OF NOTICE.-The amendment of 549, by the laws of 1901, permits notice of appeal to be served upon either the adverse party or his attorney at any place within the state. The provisions of this section, therefore, will not be applicable to the service of a notice of appeal. These cases, however, will be included in the note, as the principle is applicable to the service of other notices.

Service of notice may be made either upon the party or upon his attorney of record residing in the county where the trial was had, but where the attorney resides outside of such county, service can be made only upon the adverse party: Lindley v. Wallis, 2 Or. 203; Rees v. Rees, 7 Or. 78; Lewis & Dryden Printing Co. v. Reeves, 26 Or. 445, 38 Pac. 662; Byers v. Cook, 13 Or. 297, 10 Pac. 417; Butler v. Smith, 20 Or. 129, 25 Pac. 381; Wheeler v. Cragin, 25 Or. 603, 38 Pac. 308.

Where nothing appears in the record to show the residence of the respondent's attorney, it will be presumed that he resides

in the county where the trial was had, and that his admission of service of notice was there made: Bennett v. Minott, 28 Or. 343, 39 Pac. 997.

Service of notice made upon a record attorney of the adverse party in the county where the trial was had is good, although such attorney may reside in another county: Neuberger v. Boyce, 29 Or. 458, 45 Pac. 908.

So, it is not necessary that such service should be made upon the attorney within the county in which such attorney resides and the trial was had, but may be made anywhere in the state, provided such attorney resides in the county where the trial was had: Long Creek Build. Assoc. v. State Ins. Co. 29 Or. 572, 46 Pac. 466.

After the death of a party jurisdiction of an appeal can not be acquired by the admission of service of notice of appeal by the attorney of the party who died prior to such admission, where the attorney is not retained by the personal representatives of the deceased who had been substituted: Holt v. Idleman, 34 Or. 116, 54 Pac. 279.

§ 544. Application of Foregoing Provisions.

The foregoing provisions do not apply to the service of a summons or other process, nor so much thereof as allows service to be made of any notice or other paper to bring a party into contempt, otherwise than upon such party personally. [L. 1862; D. Cd. § 522; H. C. § 532.]

$545. Notice Valid, Though Defective in Form.

A notice or other paper is valid and effectual, although defective either in respect to the title of the action or suit in which it is made, or the name of the court or the parties, if it intelligibly refer to such action or suit. [L. 1862 ; D. Cd. § 523 ; H. C. § 533.]

Where a defect in the notice is a mere clerical mistake, or such an error that it in no way could have misled or injured the

§ 546. Filing of Papers.

other party, the defect will be overlooked: Moorhouse v. Cox, 13 Or. 435, 12 Pac. 71; Lancaster v. McDonald, 14 Or. 266, 12 Pac. 374.

All undertakings, affidavits, or other papers required by or provided for in this code shall be filed with the clerk, except when this code otherwise specially provides. A pleading or paper shall be filed by delivering the same to the clerk at his office, who shall indorse upon it the day of the month and the year, and subscribe his name thereto. The clerk shall not be required to receive for filing any paper unless the name of the court, the title of the

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