Brooks v. Ballew

Court of Appeals of Oregon

Brooks v. Ballew

768 P.2d 941, 95 Or. App. 381

CourtCourt of Appeals of Oregon

DecidedFebruary 22, 1989

Docket87-1811-NJ-1; CA A47287

StatusPublished

Cited by2 cases

This text of 768 P.2d 941 (Brooks v. Ballew) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brooks v. Ballew, 768 P.2d 941, 95 Or. App. 381 (Or. Ct. App. 1989).

Pincite

Opinion

PER CURIAM

Plaintiffs, owners of property on which they operate a restaurant, appeal a judgment dismissing their claim for a prescriptive easement to use part of an adjacent property for customer parking. They originally sued Ballew, the current owner of the property, and Oredson, a previous owner, as well as Ainsworth, who was dismissed from the case. They first argue that the trial court erred in finding that they had not acquired a prescriptive easement. On de novo review, ORS 19.125(3), we conclude that plaintiffs failed to prove entitlement to the easement. See Thompson v. Scott, 270 Or 542, 546-47, 528 P2d 509 (1974).

They also contend that the court erred in entering a judgment for Oredson because, before trial, the court had entered an order of default against him for failure to appear. ORCP 69B(1). An order of default does not necessarily preclude the defaulting party from obtaining a judgment. See Rajneesh Foundation v. McGreer, 303 Or 139, 734 P2d 871, former opinion adhered to, 303 Or 371, 737 P2d 593 (1987). Moreover, because Ballew appeared and prevailed on the merits of plaintiffs’ claim and both defendants occupied the same legal position, the trial court correctly entered judgment for the party in default. State ex rel Everett v. Sanders, 274 Or 75, 544 P2d 1043 (1976); Bronn v. Soules, 140 Or 308, 312-13, 11 P2d 284, 13 P2d 623 (1932).

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM

Plaintiffs, owners of property on which they operate a restaurant, appeal a judgment dismissing their claim for a prescriptive easement to use part of an adjacent property for customer parking. They originally sued Ballew, the current owner of the property, and Oredson, a previous owner, as well as Ainsworth, who was dismissed from the case. They first argue that the trial court erred in finding that they had not acquired a prescriptive easement. On de novo review, ORS 19.125(3), we conclude that plaintiffs failed to prove entitlement to the easement. See Thompson v. Scott, 270 Or 542, 546-47, 528 P2d 509 (1974).

They also contend that the court erred in entering a judgment for Oredson because, before trial, the court had entered an order of default against him for failure to appear. ORCP 69B(1). An order of default does not necessarily preclude the defaulting party from obtaining a judgment. See Rajneesh Foundation v. McGreer, 303 Or 139, 734 P2d 871, former opinion adhered to, 303 Or 371, 737 P2d 593 (1987). Moreover, because Ballew appeared and prevailed on the merits of plaintiffs’ claim and both defendants occupied the same legal position, the trial court correctly entered judgment for the party in default. State ex rel Everett v. Sanders, 274 Or 75, 544 P2d 1043 (1976); Bronn v. Soules, 140 Or 308, 312-13, 11 P2d 284, 13 P2d 623 (1932).

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

768 P.2d 941, 95 Or. App. 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-ballew-orctapp-1989.

Opinion

Related

Cite This Page — Counsel Stack