First Nat. Bank v. Rusk

Oregon Supreme Court

First Nat. Bank v. Rusk

127 P. 780, 64 Or. 35, 1912 Ore. LEXIS 270

CourtOregon Supreme Court

DecidedNovember 26, 1912

StatusPublished

Cited by12 cases

This text of 127 P. 780 (First Nat. Bank v. Rusk) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

First Nat. Bank v. Rusk, 127 P. 780, 64 Or. 35, 1912 Ore. LEXIS 270 (Or. 1912).

Pincite

Opinions

Mr. Justice Burnett

delivered the opinion of the court.

It was admitted by the defendant in person at the hearing of this case in this court, that the return of the sheriff indorsed upon the summons was strictly true as therein stated. There are two things of which he complains on his appeal. One is that the blank left for the name of the county in the title of the cause as the same appears in the summons was not filled, and the other is that the summons notifies the defendant that the plaintiff will “take judgment against you as prayed for in its complaint,” instead of stating that the plaintiff would take judgment for a specific sum of money. The deduction which the defendant makes from these premises is that the circuit court had no jurisdiction over his person and none to render the judgment.

Conceding, without deciding, that, prior to the amendment of Article VII of the constitution of this State, adopted by the initiative process at the November election, 1910, the conclusion urged by the defendant would be the proper one to be deduced from the precedents heretofore established in this court, yet we think the constitution referred to has materially altered the situation. In part, Section 3 of the amended Article VII reads thus:

“Until otherwise provided by law, upon appeal of any case to the Supreme Court either party may have attached to the bill of exceptions, the whole testimony, the instructions of the court to the jury and any other matter material to the decision on the appeal. If the Supreme Court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial or if in any respect the judgment appealed from should be changed and the Supreme Court shall be of the opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment [39]*39to be entered in the same manner and with like effect as decrees are now rendered in equity cases on appeal to the Supreme Court.”

Decided January 14, 1913. (129 Pac. 121.)

The will of the people as thus expressed in the constitution has sounded the death knell of many technicalities, which are best honored in their breach rather than in their observance. It removes from this court the fetters of hair-splitting niceties, and enables it to proceed according to common-sense rules of natural justice, having due regard to the spirit of the law rather than its letter. Confessedly the defendant was personally served with the complaint, a document which informed him at large with what the plaintiff charged him, in what court he was charged, and of the relief demanded by the plaintiff. Technically considered, the circuit court may have erred in rendering judgment on such a summons; but by the constitution alluded to we have authority to affirm the judgment “notwithstanding any error committed during the trial.” In may be, too, that for the purpose of enforcing substantial justice it will in some cases hereafter be deemed proper to adhere to the former precedents; but the case at bar presents no features debarring the use of the plenary power confided to us by the people to disregard any error.

The judgment appealed from is affirmed. Affirmed.

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

Mr. Justice Burnett

delivered the opinion of the court.

It was admitted by the defendant in person at the hearing of this case in this court, that the return of the sheriff indorsed upon the summons was strictly true as therein stated. There are two things of which he complains on his appeal. One is that the blank left for the name of the county in the title of the cause as the same appears in the summons was not filled, and the other is that the summons notifies the defendant that the plaintiff will “take judgment against you as prayed for in its complaint,” instead of stating that the plaintiff would take judgment for a specific sum of money. The deduction which the defendant makes from these premises is that the circuit court had no jurisdiction over his person and none to render the judgment.

Conceding, without deciding, that, prior to the amendment of Article VII of the constitution of this State, adopted by the initiative process at the November election, 1910, the conclusion urged by the defendant would be the proper one to be deduced from the precedents heretofore established in this court, yet we think the constitution referred to has materially altered the situation. In part, Section 3 of the amended Article VII reads thus:

“Until otherwise provided by law, upon appeal of any case to the Supreme Court either party may have attached to the bill of exceptions, the whole testimony, the instructions of the court to the jury and any other matter material to the decision on the appeal. If the Supreme Court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial or if in any respect the judgment appealed from should be changed and the Supreme Court shall be of the opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment [39]*39to be entered in the same manner and with like effect as decrees are now rendered in equity cases on appeal to the Supreme Court.”

Decided January 14, 1913. (129 Pac. 121.)

The will of the people as thus expressed in the constitution has sounded the death knell of many technicalities, which are best honored in their breach rather than in their observance. It removes from this court the fetters of hair-splitting niceties, and enables it to proceed according to common-sense rules of natural justice, having due regard to the spirit of the law rather than its letter. Confessedly the defendant was personally served with the complaint, a document which informed him at large with what the plaintiff charged him, in what court he was charged, and of the relief demanded by the plaintiff. Technically considered, the circuit court may have erred in rendering judgment on such a summons; but by the constitution alluded to we have authority to affirm the judgment “notwithstanding any error committed during the trial.” In may be, too, that for the purpose of enforcing substantial justice it will in some cases hereafter be deemed proper to adhere to the former precedents; but the case at bar presents no features debarring the use of the plenary power confided to us by the people to disregard any error.

The judgment appealed from is affirmed. Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

127 P. 780, 64 Or. 35, 1912 Ore. LEXIS 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-nat-bank-v-rusk-or-1912.

Opinions

Related

Cite This Page — Counsel Stack