Clarinda Trust & Savings Bank v. Doty

163 P. 418, 83 Or. 214, 1917 Ore. LEXIS 23

• Court: Oregon Supreme Court
• Decided: March 6, 1917
• Status: Published

Opinion

Opinion by

Mr. Chief Justice McBride.

A great many outside and irrelevant matters seem to have been litigated on the trial of defendant’s answer in abatement. There was really but one question: Whether there had been such a transfer of the notes as would protect the defendant from a second suit upon them by the Lisle Manufacturing Company, the original holder. What its motive may have been in assigning the notes was not a matter of concern to the defendant.

1-4. If the transfer was actually made without the knowledge on the part of plaintiff of any infirmity in the notes, or of any circumstances indicating the design on the part of the Lisle Manufacturing Company to deal fraudulently with the defendant or to avoid responding to any warranty it had given, the plea would be unavailable. If they were transferred with notice to’ it of these facts, these matters could be urged in bar, and there would be no necessity of pleading them in abatement. We think the evidence indicates an actual assignment of these twenty-two notes to the plaintiff herein. Whether such assignment was with or without notice of any equities in favor of the defendant does not cut any figure in the case; that being a matter to be litigated upon a plea in bar and not in abatement, the sole object of which is to protect the defendant from another suit brought by some person who might be the real party in interest. Of course, it goes without saying that the assignment of the notes and the actual, manual transfer of the mortgage carried with them the right in the plaintiff to have the mortgage foreclosed; but the principal questions raised here are technical questions upon the pleadings.

5, 6. It is contended that the original» reply to the answer in abatement was insufficient to raise an issue by reason of the fact that it only professed to deny the material allegations of the answer. This contention was well taken, but the court had ample authority under Sections 100, 101 and 102 of the Code to allow an amendment; the reply being a mere imperfect denial and the amendment not introducing any new cause of defense. It was remarked by counsel:

“If amendments to pleadings may be allowed after motion for such judgment is made, then the statute could never be made effective, and would be a nullity and a farce; and it cannot be assumed the legislature intended it to be such.”

This would be true if the science of pleading were intended to be a mere game of wits, instead of a means of clearly presenting the issues to the court. Courts are organized for the purpose of enabling parties to have a fair and orderly trial of their contentions, and to this end they should always be liberal in allowing amendments to pleadings so that every party may have a day in court and not be turned away by reason of a defect in his pleading which can be corrected before trial without detriment to the administration of justice.

7. Questions are raised upon the sufficiency of the verification. There is no motion to strike out the pleading, as required by Section 106, L. O. L., and unless such motion is made the defect on this account is waived.

The judgment of the Circuit Court is affirmed.

Affirmed.

Mr. Justice McCamant, Mr. Justice Burnett and Mr. Justice Harris concur; Mr. Justice Benson taking no part in the consideration of this case.