Jaques v. Patterson

239 P. 426, 122 Or. 394, 1927 Ore. LEXIS 176

• Court: Oregon Supreme Court
• Decided: August 27, 1927
• Status: Published

Opinion

RAND, C. J.

The first assignment of error is the overruling of the demurrer to the answer. The first ground of demurrer was that the answer did not state facts sufficient to constitute a defense to the action and the second ground was that the answer contained two or more counterclaims not separately pleaded. The demurrer was to the answer as a whole and not to the new matter which was affirmatively alleged by way of two further and separate answers and defenses, or to either thereof, and as stated the answer contained not only a denial of the facts alleged in the complaint, but also of new matter set up affirmatively as a defense to the action. It is settled law in this state that where an answer by denials puts in issue matters which it is necessary for the plaintiff to prove in order to entitle him to recover, and pleads further matter as a separate defense, a demurrer to the answer as a whole must be overruled: Miller v. Cunningham, 71 Or. 518 (139 Pac. 927). This case came within that rule and was controlled by it, but notwithstanding this, we have examined the two affirmative defenses and find that neither of them was subject to demurrer even if the demurrer had been drawn to test their sufficiency. The answer alleged facts, which if true would constitute a complete defense to plaintiff’s action and the separate items alleged in the first affirmative defense were alleged as payments made separately in satisfaction and discharge of plaintiff’s claim and demand. These items could be combined without being separately pleaded,- the same as if they had been money payments made in part payment of plaintiff’s demand.

The other assignments are in respect to rulings made by the court in the trial of the cause. These are the refusal of the court to permit plaintiff to amend his complaint and directing a verdict for the defendant. There is no bill of exceptions and no transcript of the testimony filed upon this appeal, and appellant’s printed abstract states that the testimony was not taken down in shorthand and that no bill of exceptions has been prepared or settled. There is, therefore, no record whatever before us of any of the proceedings complained of. Error will not be presumed, and if there was error it must be made to appear upon the face of the record or else this court is powerless to act. While this court is firmly of the opinion that in all proper cases the power of the trial court to permit amendments of the pleadings should in furtherance of justice be liberally exercised, yet there is nothing here tó show any abuse of discretion upon the part of the trial court.

For the reasons stated the judgment must be affirmed. Appirmed.