Hall v. Dartt

122 P. 898, 62 Or. 97, 1912 Ore. LEXIS 114

• Court: Oregon Supreme Court
• Decided: April 16, 1912
• Status: Published

Opinion

Mr. Justice McBride

delivered the opinion of the court.

1. The effect of the answer of defendants was to deny the ownership of the land or any claim therein adverse to plaintiff. Section 78, L. O. L., provides that the answer shall contain “a general or specific denial of each material allegation of the complaint controverted by the defendant or of any knowledge or information thereof sufficient to form a belief; provided, however, that nothing can be proved under a general denial that cannot be proved under a specific denial of the same allegations.” Whatever may be the holding in other states, under their peculiar practice, we hold that in this State a general denial raises the same issues which would be raised by a specific denial. Tested by this, defendants pleaded themselves out of court. If they had no interest in the subject-matter and no claim adverse to plaintiff, the question as to whether plaintiff had a valid lien against the property was not one which they had any right to litigate. Had the case gone to trial, plaintiff could not have introduced testimony to prove they had an interest, because their denial of that allegation cleared the path between him and the property. Had they attempted to litigate the question as to the validity of the lien, the court could well have said:

“As you disclaim any interest in the property, its ultimate disposition does not concern you.”

The defendants, by their answer, disclaim any ownership or interest in the property, and plaintiff, taking them at their word, dismissed them. No answer alleging ownership was tendered with the affidavit and motion to reopen the case. The defendants merely sought to be allowed to try the case on the question of ownership upon the original answer, denying ownership. But even had a new answer been tendered, setting forth the adverse ownership of defendant Barton, it was still within the discretion of the court to refuse to set aside its decree. If the verified answer originally filed was true, the affidavit, setting up Barton’s' ownership, was false. A party should not be permitted to blow hot and cold with the same breath; and the court was justified in refusing to reopen the case.

2. Defendants have no standing in court entitling them to question the decree; and whether it was void or voidable cannot be raised by them in this proceeding. As to the cross-appeal, it is always within the discretion of the court to modify its decrees within the term; and the original allowance of $200 as attorney’s fees was manifestly excessive. The modification of the amount to $75 is approved.

The decree of the circuit court is wholly affirmed; but, as plaintiff has prevailed upon the appeal of defendants, and has been defeated in his cross-appeal, neither party will recover costs in this court.

Affirmed: Rehearing Denied.