Kelley v. Anderson

166 P. 555, 85 Or. 138, 1917 Ore. LEXIS 303

• Court: Oregon Supreme Court
• Decided: July 17, 1917
• Status: Published

Opinion

Mr. Justice Benson

delivered the opinion of the court.

1. Defendant insists that the decree of the trial court must be reversed for the reason that there is a total failure of proof upon the issue of filing for record a notice of the lien. The entire absence of evidence upon this point is conceded by plaintiff, but he relies upon the doctrine announced in Henkle v. Dillon, 15 Or. 610, 617 (17 Pac. 148), wherein Mr. Justice Strahan says:

“Counsel for appellants insisted that there was no proof of the existence of the chattel mortgages in the record. He overlooks the effect of the pleading. Copies of said mortgages, certified by the clerk, so as to make them evidence, are attached to the answer of Staver and Walker, and have come here without objection. In addition to this, throughout the whole case, their existence is constantly assumed. Besides it does not appear that there was any objection in the court below to the copies attached to the answer, and so far as it appears, this objection is made in this court for the first time, and it could not for that reason be allowed to prevail. ’ ’

2. The situation in the ease at bar is very different. The copies attached to the complaint are not certified by the clerk nor authenticated in any manner whatever. They are nowhere admitted to be true copies and there is nothing in the record, aside from the allegations in the complaint, to indicate when, if at all, they were filed for record. The lien notice, as recorded, is the foundation of plaintiff’s right to recover. We are unable to find in the pleadings or evidence anything inconsistent with defendant’s denial and the decree must therefore be reversed and the suit dismissed. Reversed. Suit Dismissed.

Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Harris concur.