Goin v. Chute

270 P. 492, 260 P. 998, 126 Or. 466, 1927 Ore. LEXIS 282

• Court: Oregon Supreme Court
• Decided: October 20, 1927
• Status: Published

Opinions

ROSSMAN, J.

It is the contention of the defendants that the Circuit Court should have dismissed the appeal because the transcript from the County Court was not accompanied with the evidence adduced before the County Court. As we have seen, the plaintiff did not take his appeal for the purpose of having a trial in the appellate court, but for the sole purpose of taking a voluntary nonsuit. The evidence would have served no purpose at all. Section 555, Or. L., provides:

“When it appears by affidavit to the satisfaction of the court that the transcript is incomplete in any particular substantially affecting the merits of the judgment or decree appealed from, on motion of the respondent the court shall make a rule upon the clerk of the court below, requiring him to certify as to snch alleged omission, and if true,” transmit to the appellate court the missing papers “or, in such case, the respondent may move to dismiss the appeal * * .”

When the plaintiff moved for a nonsuit, the defendants did not call to the Circuit Court’s attention any incompleteness in the transcript; no affidavit was ever filed, showing that more documents on file with the County Court were necessary in the Circuit Court to enable the latter to intelligently pass on the motion for nonsuit. Nor did the County Court ever certify to any omission. We must, there fore, assume that the record was sufficient to confer jurisdiction upon the Circuit Court. Jurisdiction having been conferred, the Circuit Court was authorized to try the case de novo: Or. L., §§ 556 and 559, subd. 3; In re Plunkett’s Estate, 33 Or. 414 (54 Pac. 152); Slaughter v. Martin, 9 Ala. App. 285 (63 South. 689); French v. Weise, 112 Mich. 586 (70 N. W. 1101); Garfield v. Mansfield, 223 Mich. 694 (194 N. W. 526).

Jurisdiction having been conferred to proceed with the case de novo, the Circuit Court was authorized to allow the plaintiff a voluntary nonsuit: Currie v. Southern Pacific Co., 23 Or. 400 (31 Pac. 963); Leonard v. Security Building Co., 179 Mo. App. 480 (162 S. W. 685); French v. Weise, 112 Mich. 586 (70 N. W. 1101); Garfield v. Mansfield Steel Co., 223 Mich. 694 (194 N. W. 526); Pence v. Gabbert, 67 Mo. App. 493; 6 Ency. of Pl. & Pr. 833; 18 C. J. 1158.

The record is not before us showing what, if any, relief the defendants sought in the County Court. Section 182, Or. L., provides a plaintiff may take a voluntary nonsuit, unless the answer contains a counterclaim. An application for a writ of habeas corpus would not permit a counterclaim.

Aeeirmed.

Band, C. J., and McBride and Coshow, JJ., concur. For appellant there was a brief over the name of Messrs. Botts & Winslow, with an oral argument by Mr. George P. Winslow. For respondent there was a brief and oral argument by Mr. L. F. Callahan.

¡Former opinion adhered to on rehearing September 25, 1928.