L. D. Powell Co. v. Wiest

McBRIDE, C. J. If ever a case presented a more complete comedy or trag’edy of errors, this is one, and illustrates the futility of endeavoring to perpetuate our inflexible statutory rules of procedure. Section 548, Or. L., provides, among other matters, the following: “A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein. * * shall be deemed a judgment or decree.” There was no final order made in this case and no judgment has ever been entered. While the matters stated in the affidavit, if properly pleaded, might have been available in an answer either as a defense or set-off, or as a partial defense, they were wholly outside the case upon a motion to make more definite and certain. Not a single one of the five causes, set forth in defendant’s motion to make more definite and certain, was well taken, and the order, requiring the plaintiff to incorporate the matters therein required, was wholly erroneous. The plaintiff was put in a very peculiar position, for if it stood upon its complaint and moved the court to enter judgment against it, such judgment would have been at its request, and it could not have appealed from it. On the other hand, so long as the proceeding was held up by the erroneous order, the defendant could lie on his oars and not ask for a dismissal and judgment against the plaintiff. Plaintiff could have complied with the erroneous order thereby introduc *22 ing wholly extraneous matter into its complaint. Perhaps it might have been better for it to have done so, but as the case now stands, the proceeding is suspended like Mohammed’s coffin, and there is no judgment from which plaintiff can appeal, and we are very reluctantly compelled to dismiss the appeal. This seems an injustice, but we have no power to override the provisions of the statute greatly as we dislike to do otherwise. Some time in the future, we trust that the court will not be placed in a suit of legislative armor, and threatened with censure for an indecent exposure of justice if we take it off and decide in accordance with common sense instead of the statute. The appeal must be dismissed, but we suggest, in view of the circumstances, and the fact that under any theory the case is still pending in the Circuit Court, that plaintiff be given ample time in which to plead further in the matter. Appeal Dismissed. Objections to Cost Bill Overruled. Burnett, Bean, Brown, Eand, Coshow and Belt, JJ., concur in the result only.