Tanous v. Johnston

BELT, J. Defendant asserts that the complaint fails to state facts sufficient to constitute a cause of suit in that it fails to allege the insolvency of Edith L. Johnston. This contention is untenable. Plaintiff has alleged and proved that a lien on the real property in question was obtained by virtue of a writ of attachment. The-complaint is in the usual form of a creditor’s suit and contains the necessary allegations to invoke equitable jurisdiction: Ryckman v. Manerud, 68 Or. 357 (136 Pac. 826, Ann. Cas. 1918C, 522); Matlock v. Babb, 31 Or. 523 (49 Pac. 873); Dawson v. Sims, 14 Or. 561 (13 Pac. 506); 5 Pom. Eq. Juris. (2 ed.), § 2310. *348 It is contended that plaintiff is guilty of laches and negligence in the prosecution of this suit, since it was about nine years after the case was at issue on the pleadings before the same was brought to trial. We are not unmindful of the rule that the mere institution of a suit does not of itself relieve a person from the charge of laches. If a party fails to prosecute his suit diligently, the consequences are the same as though no suit had been brought: 21 Corpus Juris, p. 215. The defense of laches was not pleaded by defendant in the answer nor did he raise the question in the lower court. Under such circumstances it is not necessary to consider the question here. In referring to the defenses of laches and the statute of limitations our court in Baillie v. Columbia Gold Mining Company, 86 Or. 39 (167 Pac. 1167), said: “These defenses can be waived and they are deemed waived unless asserted by the litigant entitled to assert them.” In 3 Corpus Juris, page 710, it is said: “Defendant cannot for the first time on appeal urge the laches of complainant in bringing or prosecuting the suit.” In 10 R. C. L., page 408, the rule is thus stated: “The object of pleading laches is to afford the complainant an opportunity to amend, and consequently if the defendant fails to set up that defense it is generally held that he cannot insist on it on the hearing. A fortiori, laches, to be available as a defense, should be set up in the trial court.” The lower court, on objection made by defendant, rejected all of the depositions of the plaintiff offered in evidence for the reason that the witnesses making them resided out of the state, and in doing *349 so relied on the case of Craig v. Crystal Realty Company, 89 Or. 25 (173 Pac. 322). Section 407, Or. L., provides: “Upon the trial either party may object to the reading of a deposition or any part thereof, when offered by the other, because the witness is incompetent, or the testimony is so, or irrelevant, and not otherwise. All other objections to depositions shall be taken by written exceptions filed with the clerk within ten days from the closing of the testimony, and- before the first day of the term next following thereto, and may be heard and decided by the court or judge thereof at any time thereafter before the trial of the suit.” No objections were made to the competency of the witnesses or the relevancy of their testimony and no written exceptions were filed with the clerk within ten days from the closing of the testimony, in accordance with the provisions of the above statute. The motion to suppress the depositions at the time of the trial came too late. The testimony of witnesses who cannot be found within or who reside out_of the state cannot, under our statute, be taken by depositions in a suit in equity; but in the instant case defendant appeared by counsel and in his own proper person at the time of the taking of these depositions and cross-examined the witnesses. He thereby waived any objection he may have had to the manner and method of taking this testimony. In commenting upon a statute similar to ours with reference to depositions the Supreme Court of North Carolina in Carroll v. Hodges, 98 N. C. 418 (4 S. E. 199), said: “The purpose is to settle the depositions as evidence before the trial or hearing, and thus prevent surprise, misapprehension, confusion, and delay on *350 trial. This provision is expedient, convenient, and not at all nnjust. Fair opportunity is afforded every litigant to make objection to the deposition in every aspect' of it, not in the hurry of the trial or hearing, but upon deliberation and scrutiny. Unless such objection is made in apt time, the statute makes the deposition evidence.” The record in De Bow v. Wollenberg, 52 Or. 416 (96 Pac. 536, 97 Pac. 717), discloses that a motion was made to suppress the deposition of a witness which was taken out of the state, for the reason that our statute did not authorize the taking of such depositions in suits in equity. The court held that such objection was not made within the time required by statute, and the deposition was received in evidence. De Bow v. Wollenberg, supra, is in conflict with Craig v. Crystal Realty Company, supra; but we believe, after careful consideration, that it is in keeping with the purpose and spirit of our statute, and is, therefore, accepted as controlling here. The motion to suppress the depositions of plaintiff’s witnesses ought to have been denied, and since the same were made part of the record herein over the ruling of the trial court, we will give them due consideration in reaching our conclusion as to the merits of this controversy. We are satisfied it has been established by clear and convincing evidence, in keeping with the findings of the trial court, that the defendants wrongfully and fraudulently entered into a conspiracy to cheat and defraud the creditors of Edith L. Johnston as alleged in the complaint. The transaction of these defendant relatives whereby they undertook to beat said creditors reeks with fraud from beginning to end. A long recital of the facts upon which we base this conclusion would serve no good purpose to the *351 legal profession and the writer prefers not to encumber the reports. The decree of the Circuit Court in declaring the conveyances in question fraudulent and void and subjecting the real property involved to the lien of the writ of attachment obtained by plaintiff is affirmed. Affirmed. McBride, C. J., and Bean and Brown, JJ., concur.