J. & v. Liberty, Inc. v. Columbia Trust & Savings Bank

COSHOW, J. The first part of the demurrer to the complaint, to wit: that there is a defect of *294 parties defendant, is equivalent to a plea in abatement where the alleged defect of parties appears on the face of the complaint: Ryckman v. Manerud, 68 Or. 350, 365 (136 Pac. 826, Ann. Cas. 1915C, 522), where we find this language: “Where the debt is joint, the creditor must sue all the debtors, or those sued may demur to his complaint on the ground that there is a defect of parties defendant, if the defect appears on the face of the complaint, or, if it does not so appear, the defendant sued may plead in abatement such defect. But the defendants so sued may waive such defect of parties and permit judgment to be taken against them.” Section 41, Or. L., prescribes as follows: “The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall cause them to be brought in.” If the Columbia Improvement Company had an interest in the $20,000 deposited by plaintiff with the defendant, it was a necessary party to this action. That matter must be determined by a construction of the contract between plaintiff and the Improvement. Company and the receipt written at the foot of plaintiff’s copy of said contract. Before the Improvement Company could have any interest in the sum of $20,000 these three things must have happened on or before April 1, 1925, to wit: First, the building, including the theater, must have been completed; second, sufficient time should have expired for filing mechanics’ liens upon said building, or, third, if any liens had been filed they must have been satisfied by payment, discharge or by having been defeated. All *295 of these conditions must have happened on or before April 1, 1925. There is no pretense that any of these conditions has been fulfilled. It is elementary that the demurrer admits the truth of the allegations attacked thereby. The allegations in the complaint that the building has not been completed, that mechanics’ liens aggregating over $48,000 in amount have been filed against said building, and that a suit was pending for the foreclosure of said mechanics’ liens are admitted. For these reasons we do not see how it is possible for Columbia Improvement Company to assert or claim any interest in the $20,000. It has not applied for permission to intervene. The complaint shows that the Improvement Company has no claim to or interest in the $20,000. Defendant is supposed to be entirely disinterested as between plaintiff and said Improvement Company. Attorneys for defendant ingenuously argue that in order to prevent said Improvement Company from having a claim on said money the last sentence quoted from said agreement should read as follows: “But if all of the said contingencies do not happen on or before April 1,1925, said Bank shall return and pay over said $20,000.00 to said lessee.” The clause as it appears reads as follows: “but unless all said contingencies do happen on or before April 1, 1925, said Bank shall return and pay over said $20,000.00 to said lessee,” the plaintiff herein. The agreement also provides that said fund upon the happening of all said contingencies, and not otherwise, shall be paid over by the Bank to lessor, said Improvement Company. Now it is undisputed that none of said contingencies has happened. The agreement clearly provides that *296 said money should be paid over to the lessee, the plaintiff herein, unless all said contingencies do happen on or before April 1, 1925. It would seem hard to make language any more definite or lucid. We think that it clearly appears from said agreement and the issue joined by the complaint and demurrer that plaintiff is entitled to recover. The Columbia Improvement Company has no claim upon or interest in said $20,000 whatever. The only contention that the complaint does not state facts sufficient to constitute a cause of action is based on the contention that said Improvement Company is a necessary party. That point is covered by the other branch of the 'demurrer. A cause of abatement must be raised either by demurrer when it appears upon the face of the complaint, or else by proper plea. It has been held many times by this court that unless a cause of abatement is so raised it is waived: Fiore v. Ladd, 29 Or. 528 (46 Pac. 144); Barnum v. Lockhart, 75 Or. 528, 542 (146 Pac. 975); Murray v. Firemen’s Ins. Co., ante, p. 165 (254 Pac. 817). Cause for abatement is not presented by a demurrer on the ground that the complaint does not state facts sufficient. The objection that the complaint does not state facts sufficient is never waived: Section 72, Or. L. The judgment is affirmed. Aeeirmed.