Rogue River Mining Co. v. Walker

1 Or. 341

• Court: Oregon Supreme Court
• Decided: July 15, 1861
• Status: Published

Opinion

Boise, J.

The four first grounds of error may be disposed of together. The first is, that the court erred in striking out a part of defendant’s answer. The second alleges the same thing in a different form. The third and fourth erred, in not allowing Nicholas Pickle to file his separate answer.

I do not propose to examine the merits of these proceedings of the court below, for the reason that these four errors, if errors at all, were waived; for, being acquiesced in by the defendant in the court below, and not excepted to, any supposed irregularity in these respects was waived, and cannot now be taken advantage of. Such was held to be the doctrine of this court in the case of Scott v. Cook, Oregon R. p. 24; and I fully concur with the doctrine there expressed, and will not stop to discuss it here.

The evidence set out in the bill of exceptions, which evidence was rejected by the court, and the rejection excepted to, tended only to prove the allegations in the original answer, which were abandoned in the amended answer, and which were not in issue in the cause on the trial, and counsel for plaintiffs in error admit was properly rejected.

The only other point is, as to the appearance of Nicholas Pickle. It appears, by the record, that Pickle appeared by counsel, and asked leave to file his separate answer, which was rejected. He then appeared at the final trial; and, I think, when he once,, appeared in the case in court for any purpose, such appearance was equivalent to service, and he was as liable to judgment as the defendant served. Such I understand to be the meaning of the statute, page 88, section 36.

Judgment affirmed.