Waggy v. Scott

Opinion by Mr. Justice Moore. 1. The first ground of the demurrer admitted the truth of the probative facts alleged, and if the whole or any part of the complaint can be resolved into a cause of action, the general demurrer is unavailing to challenge its sufficiency: Ketchum v. State, 2 Or. 103; Toby v. Ferguson, 3 Or. 27; Simpson v. Prather, 5 Or. 86; Jackson v. Jackson, 17 Or. 110 (19 Pac. 847); Bliss on Code Pleading, § 417. And the statement in the second count being clearly sufficient to constitute a cause of action, the court very properly overruled the general demurrer. 2. It is contended that the causes of action stated in the complaint are improperly joined, and that the court erred in overruling the special demurrer. Section 93, Hill’s Code, provides that “ The plaintiff may unite several causes of action in the same complaint when they arise out of,— 1. Contract, express or implied. * * * But the causes of action so united must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated.” The causes of [389] action having been separately stated, each triable in the same place, and affecting alike all the parties thereto, the only question for consideration on this branch of the subject is whether the first cause of action arose out of contract. An examination of that part of the pleading will disclose that it is an action for the recovery of damages for the nonperformance of a parol contract, and at common law would have been designated an action in indebitatus assumpsit on a promise to pay by chattels: 1 Chitty’s Pleading, *99; 2 Chitty’s Pleading, *38. Assumpsit is always considered an action ex contractu, so there can be no doubt that the plaintiff’s first cause of action arose out of contract, and was properly joined; and this being so, the court properly overruled the special demurrer. 3. The remaining question is whether the court erred in refusing to permit the defendants to file an answer. They contend that section 7 of an act of the legislative assembly approved February twentieth, eighteen hundred and ninety-three, (Session Laws, 1893, p. 38,) authorizes the filing of an answer on appeal in the circuit court under the circumstances hereinbefore stated. This section provides thát “ In all cases of appeal, the bill of items of the account sued on or filed as a counterclaim or set-off, or the statement of the plaintiff’s cause of action, or of the defendant’s counterclaim or set-off, or other ground of defense, filed before the justice, may be amended upon appeal in the appellate court to supply any defect, deficiency, [390] or omission therein by filing formal pleadings therein, when by such amendment substantial justice will be promoted; and in all cases, when required by the court or by either party to the action, formal pleadings shall be filed on either side upon the trial of the cause on appeal. When either party requires such formal pleadings, he shall cause to be served on the opposite party a notice thereof in writing, and file the same in the court where the cause is pending, by the first day of the term of such court at which such cause is to be tried; but no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment.” An examination of the act in question shows that it was the intention of the legislative assembly to simplify proceedings in justice’s courts, and to permit issues to be joined and action tried without the necessity of formal pleadings, but we can not think that the act warrants the filing of an answer raising an issue of fact in the circuit court on appeal not made in the justice’s court. The act does permit formal pleadings to take the place of the bill of items of an account filed by the plaintiff, and the counterclaim or set-off filed by the defendant, in the justice’s court; but s.uch amendment is allowable in the circuit court only when no formal pleadings have been filed in the justice’s court from which the appeal is taken. In the case at bar the defendants relied on their demurrer, and, not having filed any counterclaim [391] or set-off or other ground of defense in the justice’s court, cannot invoke the aid of the act in question. In Moser v. Jenkins, 5 Or. 447, it was held that no amendment of the pleadings substantially changing the issues tried in the. justice’s court was allowable in the circuit court on appeal. In Currie v. Southern Pacific Company, 21 Or. 566, (28 Pac. 884,) it was held that the circuit court, on appeal from the justice’s court, had no authority to allow an answer to be filed after a demurrer was overruled, as this would change the issue made in the justice’s court from one of law to that of fact. This decision was approved and followed in Forbis v. Inman, 23 Or. 68, (31 Pac. 204,) and, in the absence of a statute to the contrary, has become a rule of practice in this state. It is a familiar-principle that an appellate court can try only the issues which have been tried in the lower court. If the rule were otherwise issues of -fact would rarely be tried in the justice’s court, for by filling a demurrer judgment could be rendered, and on appeal the issues could be settled and tried in the circuit court, thus practically dispensing with a trial in the justice’s court. These inferior courts are established for the trial of actions which do not involve great amounts or principles, and the party who seeks the aid of such a court is afforded by the act in question a ready means of having his action there tried on its merits. There being no error in the record, it follows that the judgment is affirmed. Affirmed.