Green v. Cox

605 P.2d 1198, 44 Or. App. 183, 1980 Ore. App. LEXIS 2205

• Court: Court of Appeals of Oregon
• Decided: January 28, 1980
• Docket: No. A7809-14709, CA 13220
• Status: Published

Opinions

TANZER, P. J.

Plaintiffs appeal from an order sustaining a demurrer to their complaint for declaratory judgment. The demurrer was for failure to "state facts sufficient to constitute a cause of action.” The only allegations of the complaint which are material on this appeal are that an interlocutory order, affirmed on appeal, foreclosed plaintiff’s interest in certain property unless a certain sum plus interest and real property taxes are paid and that the payments were thereafter timely made.¹

The essential elements of any cause of action for declaratory judgment were set out in Oregon Cry. Mfgs. Ass’n v. White, 159 Or 99, 107-108, 78 P2d 572 (1938):

" 'The requisite precedent facts or conditions which the courts generally hold must exist in order that declaratory relief may be obtained may be summarized as follows: (1) there must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy, that is to say, a legally protectible interest; and, (4) the issue involved in the controversy must be ripe for judicial determination.’ ”

See also Hupp v. Schumacher, 29 Or App 9, 13, 562 P2d 217 (1977). The bare allegation that plaintiff was foreclosed and paid his redemption money is insufficient, to say the least, to allege facts indicating the existence of a "justiciable controversy,” let alone one which is "ripe for judicial determination.” A complaint for declaratory judgment need not allege very much to withstand demurrer, see Hupp v. Schumacher, supra, 29 Or App at 12, Harrison v. Port of Cascade Locks, 27 Or App 377, 379 n 1, 556 P2d 160 (1976), but it must at least allege the existence of a controversy and this one does not.²

Accordingly, we hold that the demurrer was correctly sustained.

Affirmed.

1 The complaint alleges:

"I

"This is a proceeding for declaratory relief under OES Chapter 28 for the purpose of determining a question and actual controversy between the parties.

"II

"On December 23, 1976, an interlocutory decree was entered by this court (case number A7606-07755) ordering plaintiff to pay to the clerk of the court $17,220.03 together with interest at 6% per annum from September 1, 1976, until paid, and $6.739.17 real property taxes within 120 days, or be forever barred and foreclosed of all interest in certain real property, which real property is described as follows: Lot 2 BURBANK, in the County of Multnomah, State of Oregon, hereinafter referred to as 'the real property.’

"Ill

"On January 19,1977, plaintiff filed a notice of appeal together with a supersedeas bond.

"IV

"The mandate from the Court of Appeals, affirming the interlocutory decree, was filed in Multnomah County on December 13, 1977.

"V

"On April 3, 1978, plaintiffs paid to the clerk of the court $26,568.13 pursuant to the interlocutory decree.

"WHEREFORE, plaintiffs pray:

"(1) That a declaratory judgment be rendered and entered declaring and adjudicating the respective rights and duties of the plaintiffs and the defendants in and relative to the real property; and further declaring that plaintiffs are the owners of the real property.

"(2) For an order requiring defendants to deliver to plaintiffs a deed to the real property.

"(3) For plaintiffs costs and disbursements incurred herein.

"(4) For such other and further relief as the court may deem proper.”

A prayer may be relevant to explain the nature of a cause of action alleged in a body of the complaint, Finch v. Miller, Credithrift, 271 Or 271, 275, 531 P2d 893 (1975), but it cannot supply otherwise nonexistent allegations. Here, the prayer implies that defendants have title, but there is not an allegation of that fact let alone an allegation challenging the legality of defendant’s title or describing a controversy.

2 Paragraph I might be read as a general conclusion as to the existence of a controversy, but it would stretch judicial balance past any reasonable limit to accord the passing reference in Paragraph I the status of a well-pleaded fact.