Korlann v. Belton

386 P.2d 664, 384 P.2d 210, 236 Or. 23

• Court: Oregon Supreme Court
• Decided: July 31, 1963
• Status: Published

Opinions

PER CURIAM.

The title to this case is misleading. The problem presented here does not involve either of the officials named. Mr. Korlann’s predecessor, as insurance commissioner, brought this original proceeding to have a receiver appointed to administer the Oregon assets, held by the State Treasurer, of a defunct Illinois insurance company. ORS Chapter 751. The claimants, appellants here, filed a claim against the assets. The receiver denied the claim. Objections were filed in the circuit court by the claimants to the denial of the claim. On the day set for hearing the objections, claimants failed to appear either by attorney or otherwise. The court denied the objections because of the failure of claimants to appear.

Later claimants filed a motion asking the court to set aside the order denying the objections. The motion was purportedly based on ORS 18.160. The motion was accompanied by an affidavit which sought to explain the failure to appear but did not state any facts supporting the claim. When the latter motion came on for hearing claimants and their attorney again failed to appear. In Johnston v. Braymill Co., 1933, 142 Or 95, 96, 19 P2d 93, 94, it was said:

“It is settled law in this state that a motion to open up a default and set aside a judgment should be accompanied with a copy of the verified answer which the party desires permission to file so that the court may judge whether there be a meritorious defense, for defaults should not be opened up unless the defendant have a meritorious defense.”

The record before us provides not one thing that would justify overreaching the trial court’s discretion to refuse to reopen the case.

Affirmed.