Nelson v. Smith

69 P.2d 1072, 157 Or. 292, 1937 Ore. LEXIS 107

• Court: Oregon Supreme Court
• Decided: March 25, 1937
• Status: Published

Opinions

BELT, J.

This is an appeal from a decree in equity assessing damages arising out of the commission of a tort and impressing the amount thereof as a lien upon real property owned by the defendant in the city of Portland.

The transcript of the evidence is not here. Hence,, it is presumed that the findings of the trial court are supported by the evidence. Error will' not be presumed.

From the pleadings the following facts are gleaned: On October 11,1933, at about 2 o ’clock in the morning, the defendant, a resident of California, and one Neil Stewart, both in an intoxicated condition, were, as a joint enterprise, operating an automobile on the public highway in Clackamas county, Oregon. The plaintiff, a state police officer, observing the condition of Smith and Stewart, placed both of them under arrest. While plaintiff was standing on the running board of the car endeavoring to prevent these men from further operating it, the car was wantonly and maliciously, driven so close to a telephone pole that, as a result thereof, plaintiff was crushed and severely injured. After the accident Smith returned to California where he has remained for the purpose of avoiding service of summons.

On March 22, 1934, plaintiff commenced an action at law against the defendants Smith and Stewart in the circuit court for Clackamas county. Plaintiff undertook to procure service of summons on Smith by the statutory service of the secretary of state. Such service, however, was quashed upon motion of the defendant and the action against him was finally dismissed on March 7, 1936.

On the day following the filing of the complaint in the action in Clackamas county, plaintiff commenced a suit in Multnomah county to restrain the defendant from a threatened transfer of his property in Multnomah county during the pendency of the action at law. In the complaint in the suit in equity, plaintiff attached a copy of the- complaint in the law action and,-by reference, made it a part thereof. It was also alleged that “every allegation contained in said complaint (law action) is true and plaintiff has a good cause of action against the defendants named therein upon the cause of action therein alleged”. Service of summons on Smith was made in California.

Defendant appeared specially to quash service but, after motion was denied, filed a demurrer to the complaint for the reasons, (1) That the court had no jurisdiction of the person of the defendant or the subject of the action; (2) that the complaint does not state facts sufficient to constitute a cause of suit.

While this demurrer was pending plaintiff, with permission of the court, filed an amended complaint wherein the matter of negligence was specifically alleged as set forth in the complaint in the Clackamas county action. It was also alleged that Smith was the owner in fee of certain described real property in Multnomah county, Oregon; that, unless Smith were restrained, he would convey such property for the purpose of hindering and defrauding plaintiff from satisfying any judgment that might be recovered in the law action; and that plaintiff has no adequate or complete remedy at law. In the prayer of the complaint plaintiff asked: (1) That defendant be enjoined from conveying or otherwise disposing of his property pending determination of the action at law and “this suit in equity”; (2) that the amount of damages be determined, “unless such determination shall be made in said action at law pending in Clackamas County”; (3) that the amount of damages be impressed as a lien upon the real property described in the complaint and that said property he sold to satisfy such lien; and (4) that such further relief he granted as the court shall deem equitable.

Defendant thereupon moved to strike the amended complaint upon the ground that a new and distinct cause of action had been alleged. The court overruled such motion and the defendant then demurred to the amended complaint for the reasons stated in the demurrer to the original complaint and also upon the ground that there was another action pending between the same parties for the same cause. In the meantime, however, an order to quash service of summons had been entered in the Clackamas county action and, on March 7, 1936, such action was dismissed.

The demurrer to the amended complaint having been overruled, the defendant filed his answer denying generally the allegations of the amended complaint and alleging as an affirmative defense the pendency of the Clackamas county action. Plaintiff filed his reply alleging:

“That since the filing of plaintiff’s amended complaint in this cause, the service of summons by plaintiff upon the Secretary of State as the agent and attorney of the defendant herein was held by the Circuit Court' of the State of Oregon for Clackamas County, upon motion of the defendant herein, specially appearing, to be null, void and of no effect and to give said court no jurisdiction of the person of said defendant, Roderick E. Smith. That at all times since the filing of said action in Clackamas County, defendant, Roderick E. Smith, has remained outside of the State of Oregon for the purpose of evading service of summons upon himself, that he successfully thus evaded service of any summons of process out of said Circuit Court for Clackamas County and that said action was dismissed without prejudice as to the defendant herein by said court on the 7th day of March, 1936, on the ground that no service of summons had ever been effected on said defendant.”

After issue was thus joined, the cause was heard on the merits by the court “ without the intervention of a jury”, and a decree was entered awarding plaintiff $7,500 damages and impressing the amount thereof as a lien upon the real property described in the amended complaint.

The theory of the plaintiff is that he has no complete and adequate remedy at law and, since the defendant is a non-resident and has real property in this state, equity will grant relief by impressing a lien on such property to compensate plaintiff for injuries arising out of the commission of the tort. Otherwise stated, plaintiff asserts that when a non-resident comes into this state and, while here, commits an assault upon one of its citizens, then leaves the state to avoid service of summons, equity will enforce reparation for the wrong done by impressing a lien upon such property for the amount of the damages sustained. Plaintiff also contends that, since defendant has made a general appearance and has waived trial by jury, the court had the authority to enter a personal judgment against him even though it be assumed that equity has no jurisdiction over the subject matter.

Defendant contends that the court had no jurisdiction over either his person or the subject matter. He asserts that his objection to the jurisdiction of the court over his person was not waived by answering on the merits since he was forced into court under an illegal process and that, at all times, he maintained his objection to the jurisdiction of the court. It is further contended by the defendant that the court erred in permitting plaintiff to file an amended complaint containing a new and distinct cause of action.

Whatever may be the rule elsewhere, it is well established in this state that where a party makes a special appearance for the sole purpose of objecting to the jurisdiction of the court and then, after the denial of the motion to quash service of summons, joins issue on the facts or law and participates in the trial of the cause on its merits, he will not be heard, after an adverse decision, to assert that the court had no jurisdiction over his person. As stated in Sweeney v. Jackson County, 93 Or. 96 (178 P. 365, 182 P. 380):

‘ ‘ The law will not allow a party to obtain the benefit of jurisdiction of the court if the decree is in his favor, and repudiate it when the result is adverse.”

Also see in support of the above conclusions: Sealy v. California Lumber Co., 19 Or. 94 (24 P. 197); Duncan L. Co. v. Willapa Lumber Co., 93 Or. 386 (182 P. 172, 183 P. 476); Williams v. Seufert Bros. Co., 96 Or. 163 (188 P. 165, 189 P. 636); State ex rel. v. Norton, 131 Or. 382 (283 P. 12). An exhaustive note in 93 A. L. R. 1302 lists numerous cases showing conflict of authority. We see no good reason to depart from the rule established in this state since the early case of Sealy v. California Lumber Co., supra, decided in 1890.

In our opinion, the trial court did not abuse its discretion in permitting plaintiff to file an amended complaint some nine months before trial. Amendments to pleadings should be allowed with great liberality before trial if they are essential to a fair trial on the merits of the case. The amendment in the instant case was not prejudicial to defendant. It was germane to the cause of suit as alleged in the original complaint. The amendment pertained more to a change of form than to one of substance. It was not a departure. The original pleading purported to be in equity as did the amended complaint, although each embodied allegations sufficient to state a cause of action in law. Section 1-906, Oregon Code 1930, provides:

‘ ‘ The court may, at any time before trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading or proceeding to be amended by adding the name of a party, or other allegation material to the cause; and in like manner and for like reasons it may, at any time before the cause is submitted, allow such pleading or proceeding to be amended, by striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or when the amendment does not substantially change the cause of action or defense, by conforming the pleading or proceeding to the facts proved. ’ ’

This court, in construing the above section, has held that a court may, in its discretion, before trial, permit an amendment containing a new cause of action if germane to the controversy before the court: Talbot v. Garretson, 31 Or. 256 (49 P. 978); Lieuallen v. Mosgrove, 37 Or. 446 (61 P. 1022); York v. Nash, 42 Or. 321 (71 P. 59) ; Zimmerle v. Childers, 67 Or., 465 (136 P. 349).

Having held that the court had jurisdiction over the person of the defendant, we next inquire: Did it have jurisdiction over the subject matter? It is plain that the circuit court had the power and authority to hear and determine the kind of case before it, although it may be. that plaintiff was in the wrong forum. It is also clear that if the amended complaint stated facts sufficient to constitute a cause of suit or an action at law, the pleading was not vulnerable to demurrer nor was it subject to dismissal on motion of the defendant: McCann v. Oregon Scenic Trips Co., 105 Or. 213 (209 P. 483); Spencer v. Wolff, 119 Or. 237 (243 P. 548); Brakebush v. Aasen, 126 Or. 1 (267 P. 1035); Section 6-102, Oregon Code 1930.

Plaintiff urges that equity had jurisdiction over the cause. In this contention we cannot agree. The suit was in. the nature of an equitable attachment. Counsel for plaintiff frankly concede that no case can be found in the books where equity has thus given redress for damages arising out of a tort. It is argued with much plausibility, however, that the strong arm of equity should reach out and seize the property of a nonresident where the party injured has no complete and adequate remedy at law in this state.

The primary right of the plaintiff is purely legal. It is the right to recover damages for injuries arising out of a tort — a matter solely within the cognizance of the law. Equity has no jurisdiction to pass upon a purely legal demand for unliquidated damages. The injunctive relief prayed for in the amended complaint is insufficient to bring the case within the province of equity because such proceeding was ancillary to the enforcement of a purely legal right. The fundamental rule that when equitable jurisdiction attaches it will grant complete relief has no application to the instant case for the simple reason that it never attached in the first instance.

The suit to restrain defendant from conveying his property is in effect an equitable attachment. It does violence to the statute of this state (§4-401, Oregon Code 1930) providing when attachments will lie. Relative to defendant non-residents, subdivision 2 of the above section provides that an attachment will lie “in an action upon a contract express or implied” and subdivision 4 provides it will lie “ * * * to recover a sum of money as damages, arising from a breach of any contract, whether made in this state or elsewhere, express or implied, other than a contract of marriage.”

It will he observed that the right of attachment under the statute has not been extended to torts. To sustain the contention of plaintiff that the property of the defendant may be thus seized would in effect nullify the statutory rules concerning attachments. No case has been cited, nor can we find any, wherein it has been held that équity has the power to attach or seize property to secure reparation for damages resulting from a tort.

We see no analogy between this case and creditors’ suits brought to set aside a fraudulent conveyance where the defendants therein are non-residents. In such cases the general rule does not obtain that the claim must first be reduced to a judgment: Blundon v. Guy, 53 F. (2d) 930; First National Bank v. Eastman, 144 Cal. 487 (77 P. 1043, 103 Am. St. Rep. 95, 1 Ann. Cas. 626); Quarl v. Abbett, 102 Ind. 233 (1 N. E. 476, 52 Am. Rep. 662); Pomeroy’s Equity Jurisprudence (Vol. 4) § 1415. Since a judgment in personam cannot be obtained against non-residents, the law does not require the doing of an impossible thing. It should be borne in mind, however, that a suit to set aside a fraudulent conveyance is inherently an equitable proceeding Avhereas, in the instant case, the primary right involved is one cognizant only in a law action.

Plaintiff stresses Pennington v. Fourth National Bank, 243 U. S. 269 (61 L. Ed. 713, 37 S. Ct. 282, L. R. A. 1917F, 1159), as supporting his contention that equity may seize the property of a nonresident to satisfy a claim or obligation arising out of the commission of a tort. In that case Mrs. Pennington obtained a decree of divorce in Ohio. The defendant non-resident hnsband had money on deposit in a bank in Ohio. The bank was joined as a party defendant. Upon order of the court, the bank paid money to Mrs. Pennington to satisfy award of alimony. The husband, in an action against the bank,-contended that, since he was a non-resident and no personal judgment was obtained against him, his property was taken without due process of law. The United States supreme court held that the power of the state to thus seize the property of the defendant husband was not obstructed by the federal constitution. That the court of Ohio had equitable jurisdiction over the subject matter was unquestioned. Some of the language of the court is quite broad in that it states that such power exists it# # # wbether the obligation, sought to be enforced is an admitted indebtedness or a contested claim. It is the same whether the claim is liquidated- or is unliquidated, like a claim for damages in contract or in iort. ’ ’ The language used in reference to a tort is not deemed necessary to a decision of the case.

We agree with appellant that equity had no jurisdiction in the instant case. It does not follow, however, that the circuit court had no power to enter a personal judgment against defendant'since, by a general appearance, he had submitted to jurisdiction over his person and there was a waiver of trial by jury. The mere fact that plaintiff had mistaken his forum did not justify a dismissal of the case. Section 6-102, Oregon Code 1930, provides:

“No cause shall be dismissed for having been brought on the wrong side of the court. The plaintiff shall have the right to amend his pleadings to obviate any objection on that account.” In construing the above section of .the statute, this court in Spencer v. Wolff, supra, which was quoted with approval in Weith v. Klein, 136 Or. 201 (298 P. 902), said:

“The circuit court had jurisdiction of the cause regardless of the question of whether or not it is a suit in equity or an action at law. No proceeding in the circuit court should be dismissed because addressed to the wrong side of the court. The cause should be disposed of according to its merits in the proper forum notwithstanding the litigants may have mistaken their appropriate remedy.”

In Oldenburg v. Claggett, 142 Or. 238. (20 P. (2d) 234), Mr. Justice Campbell, speaking for the court in reference to such statute, said:

“This amendment to the statute was'intended to enable the parties to a legal controversy, over which the court had jurisdiction either at law or in equity, to have the cause determined, even if the party plaintiff did mistake his remedy. The pleadings in the instant case present a state of facts which gives the circuit court jurisdiction to hear and determine the matter in dispute. Consequently the controversy should have been determined and finally disposed of by the court. ’ ’

It appears from the record that plaintiff was quite willing to try the cause in either law or equity. The defendant was not desirous of having the case tried in any court. Witness the following colloquy between counsel at commencement of the trial:

“Mb Shields (of counsel for plaintiff): I contend, yes, we have a right to proceed in equity, and I contend even if we didn’t have the right to proceed in equity, we would have a right to proceed in law. Now, the question I want to ask counsel is: Do you want us to proceed in equity or have it tried at law?

“Mb. Pipes: I object to counsel’s question, I say that the Court has no jurisdiction under the present. state of the pleadings to try this case as an equity case; and that is as far as my objection has to go, and it is as far as it does go. Now, that is an objection that I make. Unless you obviate that objection yourself, as the statute provides that you can, there is only one thing .for the Court to do, and that is to dismiss this proceeding. It does not say that I may obviate it. The statute says that you may obviate it. * * *

“Mr. Shields: We will proceed, your Honor, and give counsel the option of calling for a jury. * * *

“Now, if counsel wants it on the law side, let the record show we are willing for it to go to the law side. If it is not asked to have it transferred to the law side, we are willing to proceed on the equity side.

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“Mr. Pipes: The ruling of the Court is that it shall proceed as an equity suit?

“The Court: Yes.”

We conclude that error was committed in proceeding on the equity side of the court. When counsel for defendant objected to equitable jurisdiction, plaintiff, in the language of the statute, should have amended “his pleadings to obviate any objection on that account”. It is not the policy of the law that plaintiff should be turned out of court on an alleged meritorious claim. Since the proper forum was in law, the defendant was entitled to the benefit of a jury trial. In our opinion the record does not disclose a waiver of trial by jury. The offer to draw a jury in an advisory capacity to the court sitting in equity did not meet the objection of the defendant. It was the clear statutory duty of the plaintiff to select the proper forum.

It follows that the decree of the lower court is reversed and the cause remanded with permission for plaintiff to apply to the trial court to file an amended pleading, eliminating equitable matters therefrom, and to proceed at law.

Neither party will recover costs or disbursements.