LATOURETTE, J.
This is an action in ejectment brought by plaintiff, Marie Alery, against defendants, John Alery, Jr., and Madeline Alery, his wife, to recover possession of certain real property in La Grande. Defendants were awarded a decree on their separate answer and defense contained in their second amended answer, plaintiff having failed to file a timely reply. Plaintiff, Marie Alery, appeals.
This case and the replevin case (Alery v. Alery et al.) this day handed down involve the same parties and are based on the same alleged contract and, for that reason, were consolidated and argued together on appeal.
Plaintiff filed her complaint in ejectment on June 12, 1950. On June 29, 1950, defendants filed their answer. On September 13, 1950, defendants filed a motion to amend their answer by adding the name, as a party-plaintiff, of John Alery, Sr., plaintiff’s husband, and father of defendant, John Alery, Jr. On September 15, 1950, the court granted this motion.
On October 11, 1950, defendants filed an amended answer. On December 7, 1950, without leave of court, defendants filed their second amended answer, the material allegations being that plaintiffs induced defendants to leave their home in Wisconsin to come to Oregon under a promise to give to them the real property in question, and also the personal property involved in the replevin action, under the guise that “plaintiff John Alery Sr. was very sick and it would give him an incentive to live.” It is alleged that, in [340]*340compliance with, such request, defendants gave up a lucrative gunshop business in Wisconsin and moved to La Grande where they took possession of the real property in question and made valuable improvements on the same; that in coming to Oregon they also gave up a $25,000 inheritance which defendant John Alery, Jr.’s mother (who was also the former wife of plaintiff, John Alery, Sr.) had promised him, and that by the reason of the foregoing, plaintiffs should be estopped to assert title in themselves to the real property in question.
On January 17, 1950, defendants moved for a judgment on the pleadings for failure of plaintiffs to reply, or otherwise plead, to the second amended answer. On February 1, 1951, plaintiff, Marie Alery, filed an affidavit in opposition to defendants’ motion for judgment on the pleadings and contemporaneously therewith tendered her reply to the clerk of the court.
On February 10,1951, defendants’ attorney, Charles K. Cater, filed an affidavit in support of defendants’ motion for judgment on the pleadings. On February 21, 1951, the court denied plaintiff the right to file her reply and entered judgment on defendants’ second amended answer and counterclaim, dismissed plaintiff’s complaint and decreed that defendants were the owners in fee simple of the real property in controversy.
The second amended answer was never legally served on plaintiffs, although an attempt was so made to do by defendants’ attorney, as shown by the certificate appended to the second amended answer as follows:
“I hereby certify that I made service of the foregoing second amended answer upon the plaintiffs by mailing a copy, certified to by myself, to [341]*341Helm & Cavanaugh, attorneys for plaintiffs, on December 5,1950.
“/s/ Charles R. Cater
“Attorney for Defendants”
Section 1-708, OCLA, requires that an amended pleading be served upon the opposing parties. Section 10-603, OCLA, authorizes service on parties by mail, and the proof of service shall be the same as the proof of service of a summons. Section 1-616, OCLA, requires the certificate of service of summons by mail to state the time and place of the deposit in the post office.
The above certificate does not comply with the foregoing statutes, and, therefore, the alleged service of the second amended answer was ineffective.
In Cram v. Tippery, 175 Or 575, 155 P2d 558, we held that where an amended complaint was filed and not served upon a party the court was without authority to render judgment against him.
Section 1-1004, OCLA, permits the filing of an amended pleading by a party at any time, of course, before the period for answering shall expire. Section 1-1006, OCLA, permits the court at any time before trial to allow any pleading to be amended. An amended pleading, except one filed as a matter of course, therefore, cannot be filed without leave of court. In the case at bar the record not only fails to show the permission of the court to file the second amended answer, but counsel for defendants in the argument on the appeal admitted that such right was never secured from the court. If the second amended answer was not legally filed, it follows that a judgment could not be predicated thereon.
It has been suggested that the court, in allowing judgment on such second amended answer, thereby, [342]*342at least impliedly, consented to the filing of snch answer retroactively. We know of no law, nor has one been suggested, authorizing the court, under a situation such as exists in this case, to permit an amended pleading to be filed retroactively. Section 1-1006, OCLA, sanctions the court’s permitting a pleading to be amended. The words, “to be,” obviously refer to something in futuro. When defendants tendered their second amended answer to the clerk for filing, unaccompanied by a permissive order, such pleading, even if marked “filed,” was not legally filed and had no efficacy, and plaintiff was not required to take cognizance of the alleged filing. Therefore, when defendants moved for a judgment on the pleadings on the second amended answer, there was nothing in the record at that stage of the proceedings which would warrant the allowance of such motion.
We have held that the practice in Oregon, as announced in Garrison v. Goodale, 23 Or 307, 311, 31 P 709, is that, “* * * Some reasonable excuse should be made to appear by affidavit, when the motion for leave to amend is made.” In the instant case an affidavit is wanting.
If we adopt the fiction, however, that such action by the court was equivalent to a consent under § 1-1006, supra, then in the state of the record the court should have followed the law and permitted plaintiff time in which to file her reply {% 1-801, OCLA), or at least should have manifested the same spirit of indulgence toward the plaintiff by permitting her to file her tendered reply. Both the plaintiff and the defendants at the moment of the court’s order were in the same relative position. If plaintiff should be considered as dilatory, then both had failed to observe technical statutory requirements as to their respective pleadings, [343]*343neither of which, at that time, worked a hardship upon the other nor in anywise contributed to a delay in the trial of the cause. Plaintiff’s tardy tender of her reply was balanced by defendants’ neglect to secure the court’s consent to file their second amended answer; therefore, we think that the trial court should have exhibited the same tolerance toward plaintiff as it apparently did toward defendants. To have done so under all the circumstances revealed by the record before us would have been more in keeping with fidelity to the precept that no one should be denied his day in court; moreover, in this particular matter, so intimately entwined as it is to the contract pleaded by the defendants in the replevin case (see Alery v. Alery et al.,
Free access — add to your briefcase to read the full text and ask questions with AI
LATOURETTE, J.
This is an action in ejectment brought by plaintiff, Marie Alery, against defendants, John Alery, Jr., and Madeline Alery, his wife, to recover possession of certain real property in La Grande. Defendants were awarded a decree on their separate answer and defense contained in their second amended answer, plaintiff having failed to file a timely reply. Plaintiff, Marie Alery, appeals.
This case and the replevin case (Alery v. Alery et al.) this day handed down involve the same parties and are based on the same alleged contract and, for that reason, were consolidated and argued together on appeal.
Plaintiff filed her complaint in ejectment on June 12, 1950. On June 29, 1950, defendants filed their answer. On September 13, 1950, defendants filed a motion to amend their answer by adding the name, as a party-plaintiff, of John Alery, Sr., plaintiff’s husband, and father of defendant, John Alery, Jr. On September 15, 1950, the court granted this motion.
On October 11, 1950, defendants filed an amended answer. On December 7, 1950, without leave of court, defendants filed their second amended answer, the material allegations being that plaintiffs induced defendants to leave their home in Wisconsin to come to Oregon under a promise to give to them the real property in question, and also the personal property involved in the replevin action, under the guise that “plaintiff John Alery Sr. was very sick and it would give him an incentive to live.” It is alleged that, in [340]*340compliance with, such request, defendants gave up a lucrative gunshop business in Wisconsin and moved to La Grande where they took possession of the real property in question and made valuable improvements on the same; that in coming to Oregon they also gave up a $25,000 inheritance which defendant John Alery, Jr.’s mother (who was also the former wife of plaintiff, John Alery, Sr.) had promised him, and that by the reason of the foregoing, plaintiffs should be estopped to assert title in themselves to the real property in question.
On January 17, 1950, defendants moved for a judgment on the pleadings for failure of plaintiffs to reply, or otherwise plead, to the second amended answer. On February 1, 1951, plaintiff, Marie Alery, filed an affidavit in opposition to defendants’ motion for judgment on the pleadings and contemporaneously therewith tendered her reply to the clerk of the court.
On February 10,1951, defendants’ attorney, Charles K. Cater, filed an affidavit in support of defendants’ motion for judgment on the pleadings. On February 21, 1951, the court denied plaintiff the right to file her reply and entered judgment on defendants’ second amended answer and counterclaim, dismissed plaintiff’s complaint and decreed that defendants were the owners in fee simple of the real property in controversy.
The second amended answer was never legally served on plaintiffs, although an attempt was so made to do by defendants’ attorney, as shown by the certificate appended to the second amended answer as follows:
“I hereby certify that I made service of the foregoing second amended answer upon the plaintiffs by mailing a copy, certified to by myself, to [341]*341Helm & Cavanaugh, attorneys for plaintiffs, on December 5,1950.
“/s/ Charles R. Cater
“Attorney for Defendants”
Section 1-708, OCLA, requires that an amended pleading be served upon the opposing parties. Section 10-603, OCLA, authorizes service on parties by mail, and the proof of service shall be the same as the proof of service of a summons. Section 1-616, OCLA, requires the certificate of service of summons by mail to state the time and place of the deposit in the post office.
The above certificate does not comply with the foregoing statutes, and, therefore, the alleged service of the second amended answer was ineffective.
In Cram v. Tippery, 175 Or 575, 155 P2d 558, we held that where an amended complaint was filed and not served upon a party the court was without authority to render judgment against him.
Section 1-1004, OCLA, permits the filing of an amended pleading by a party at any time, of course, before the period for answering shall expire. Section 1-1006, OCLA, permits the court at any time before trial to allow any pleading to be amended. An amended pleading, except one filed as a matter of course, therefore, cannot be filed without leave of court. In the case at bar the record not only fails to show the permission of the court to file the second amended answer, but counsel for defendants in the argument on the appeal admitted that such right was never secured from the court. If the second amended answer was not legally filed, it follows that a judgment could not be predicated thereon.
It has been suggested that the court, in allowing judgment on such second amended answer, thereby, [342]*342at least impliedly, consented to the filing of snch answer retroactively. We know of no law, nor has one been suggested, authorizing the court, under a situation such as exists in this case, to permit an amended pleading to be filed retroactively. Section 1-1006, OCLA, sanctions the court’s permitting a pleading to be amended. The words, “to be,” obviously refer to something in futuro. When defendants tendered their second amended answer to the clerk for filing, unaccompanied by a permissive order, such pleading, even if marked “filed,” was not legally filed and had no efficacy, and plaintiff was not required to take cognizance of the alleged filing. Therefore, when defendants moved for a judgment on the pleadings on the second amended answer, there was nothing in the record at that stage of the proceedings which would warrant the allowance of such motion.
We have held that the practice in Oregon, as announced in Garrison v. Goodale, 23 Or 307, 311, 31 P 709, is that, “* * * Some reasonable excuse should be made to appear by affidavit, when the motion for leave to amend is made.” In the instant case an affidavit is wanting.
If we adopt the fiction, however, that such action by the court was equivalent to a consent under § 1-1006, supra, then in the state of the record the court should have followed the law and permitted plaintiff time in which to file her reply {% 1-801, OCLA), or at least should have manifested the same spirit of indulgence toward the plaintiff by permitting her to file her tendered reply. Both the plaintiff and the defendants at the moment of the court’s order were in the same relative position. If plaintiff should be considered as dilatory, then both had failed to observe technical statutory requirements as to their respective pleadings, [343]*343neither of which, at that time, worked a hardship upon the other nor in anywise contributed to a delay in the trial of the cause. Plaintiff’s tardy tender of her reply was balanced by defendants’ neglect to secure the court’s consent to file their second amended answer; therefore, we think that the trial court should have exhibited the same tolerance toward plaintiff as it apparently did toward defendants. To have done so under all the circumstances revealed by the record before us would have been more in keeping with fidelity to the precept that no one should be denied his day in court; moreover, in this particular matter, so intimately entwined as it is to the contract pleaded by the defendants in the replevin case (see Alery v. Alery et al., decided this date), there would, in effect, be an avoidance of a piece meal trying of controversies springing from the same transaction between the same parties.
Further, if plaintiff were not permitted to file her reply, she would suffer an added hardship by reason of certain allegations contained in defendants’ second amended answer. Not only do defendants allege a gift of the real property but also of the personal property involved in the replevin action. Should the judgment be allowed to stand in this case, defendants in the replevin case would be in a position to urge a judicial admission against plaintiff’s interest since she had failed to deny such gift of personal property.
Our attention has been called to a recital appearing in the judgment order indicating that, under a rule of that court, plaintiff was late in filing her reply. It is our opinion, however, that such rule would not apply since no reply was forthcoming until the second amended answer was legally served and filed, but, in any event, because of the reasons hereinbefore stated, [344]*344we believe its strictness should have been relaxed in this instance.
From the order of the trial court denying plaintiff’s motion to set aside the judgment, there are recitals that the plaintiff, John Alery, Sr., deeded the property to his wife, Marie Alery, without justification, and that Marie Alery was a party to the refusal of John Alery, Sr. to submit himself to examination under subpoena. The record shows that John Alery, Sr. filed an affidavit disclaiming any interest in the real property involved, and we find nothing in the record to sustain the court’s recital that Marie Alery acted in concert with her husband in preventing his testimony being taken. It is true that the same attorney represented both plaintiffs, but that is no reason for imputing to plaintiff, Marie Alery, the sins of her husband.
We are not unmindful that the action of John Alery, Sr. in failing to subject himself to examination by deposition was a factor in the trial court’s determination of the motion for judgment on the pleadings as is shown by a recital in its order, which action we do not condone but which could have been reached through proper contempt proceedings.
Much is made of the case of Whitefoot v. Leffingwell, 90 Wis 182, 63 NW 82. In that case the defendant served the plaintiff with an amended answer out of course, and the plaintiff’s attorney admitted “due service” thereof in writing.
The court there said that the amended pleading “was unauthorized and a mere nullity and may be disregarded.” However, since plaintiff accepted the service of the pleading, the court held that he waived the objection.
In the present case plaintiff never accepted service of the second amended answer, nor did the [345]*345proof of service show that she had been legally served. The fact that she tendered a reply after motion for judgment on the pleadings was made is no evidence that she ratified the making of the unauthorized pleading. At that time she was in a dilemma not of her own choosing.
Yet, for the reason hereinbefore assigned, we are of the opinion that the court abused its discretion in not permitting plaintiff to file her reply.
Reversed with instructions to permit the filing of plaintiff’s reply.