Schultz v. First National Bank

Oregon Supreme Court

Schultz v. First National Bank

348 P.2d 28, 219 Or. 491, 1959 Ore. LEXIS 487

DecidedDecember 30, 1959

StatusPublished

This text of 348 P.2d 28 (Schultz v. First National Bank) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schultz v. First National Bank, 348 P.2d 28, 219 Or. 491, 1959 Ore. LEXIS 487 (Or. 1959).

Pincite

Opinion

WARNER, J.

This is one of the two matters wherein Lester Henry Schultz is plaintiff and the First National Bank of Portland (Oregon), as executor of the last will and testament of Dorothea M. Schultz, deceased, and her heirs and devisees, are defendants, hereinafter referred to as the second suit. This appeal, for the purposes of argument, was consolidated with Schultz v. First National Bank et al., 220 Or —, 348 P2d 22, decided this date, and hereinafter referred to as the first suit.

The second suit (our file 17344) is one in equity, filed January 2,1958, in the circuit court of Multnomah county, but not in the Probate Department as was the first cause. The complaint alleges substantially the same facts found in the amended petition of the first suit.

In the second suit the plaintiff prays that he be decreed the legally adopted child of the deceased and that the court enforce the original contract and consummate the adoption.

The defendant bank demurred to the complaint. This was sustained on the ground that it did not state a cause of action, and for the further reason there was another case then pending on appeal. Thereafter, upon plaintiff’s failure to plead further, the court ordered the complaint dismissed. Plaintiff appeals from that order.

The first suit in the Probate Department of the circuit court is between the same parties and presents the same issues as does this second suit to enforce the alleged adoption agreement. For a statement of the allegations see the opinion in the first case, Schultz v. [493]*493First National Bank et al., supra. Furthermore, it is evident from that opinion, the probate court had jurisdiction to determine the issues raised in the original suit to determine heirship, as is plaintiff’s ultimate objective in this matter. ORS 117.510, 117.560.

Since the first suit was pending on appeal at the time the second suit was initiated, the demurrer to this subsequent action was properly sustained. ORS 16.-260(2).

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

WARNER, J.

This is one of the two matters wherein Lester Henry Schultz is plaintiff and the First National Bank of Portland (Oregon), as executor of the last will and testament of Dorothea M. Schultz, deceased, and her heirs and devisees, are defendants, hereinafter referred to as the second suit. This appeal, for the purposes of argument, was consolidated with Schultz v. First National Bank et al., 220 Or —, 348 P2d 22, decided this date, and hereinafter referred to as the first suit.

The second suit (our file 17344) is one in equity, filed January 2,1958, in the circuit court of Multnomah county, but not in the Probate Department as was the first cause. The complaint alleges substantially the same facts found in the amended petition of the first suit.

In the second suit the plaintiff prays that he be decreed the legally adopted child of the deceased and that the court enforce the original contract and consummate the adoption.

The defendant bank demurred to the complaint. This was sustained on the ground that it did not state a cause of action, and for the further reason there was another case then pending on appeal. Thereafter, upon plaintiff’s failure to plead further, the court ordered the complaint dismissed. Plaintiff appeals from that order.

The first suit in the Probate Department of the circuit court is between the same parties and presents the same issues as does this second suit to enforce the alleged adoption agreement. For a statement of the allegations see the opinion in the first case, Schultz v. [493]*493First National Bank et al., supra. Furthermore, it is evident from that opinion, the probate court had jurisdiction to determine the issues raised in the original suit to determine heirship, as is plaintiff’s ultimate objective in this matter. ORS 117.510, 117.560.

Since the first suit was pending on appeal at the time the second suit was initiated, the demurrer to this subsequent action was properly sustained. ORS 16.-260(2).

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

348 P.2d 28, 219 Or. 491, 1959 Ore. LEXIS 487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schultz-v-first-national-bank-or-1959.

Opinion

Related

Cite This Page — Counsel Stack