Chapman v. Multnomah County

Mr. Justice Burnett delivered the opinion of the court. 1. “The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or such other act to be done, after the time limited by this Code, or by an order enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.” Section 103, L. O. L. Confessedly, the motion to set aside the decree of May 17, 1909, and to permit the defendant to answer, was made more than one year after the entry of the decree. The crux of plaintiff’s argument is that, because the county clerk of Multnomah County is ex officio clerk of the circuit court rendering the decree, he must, in his former capacity, have known at the time what was entered of record by him in the exercise of his later function; that, as he is the officer on whom summons must be served when the county is a litigant, the municipality, as defendant here, is charged with his knowledge; that the year within which such an application might be made began, at least, on the day the decree [184] appeared on the journal of the circuit court, and hence the court was without power to sustain the motion, made after the expiration of the year, and, for want of jurisdiction, could not overturn the decree in the Quasi summary manner provided by the statute. Whether this reasoning is sound or unsound depends upon the signification given the word “notice” in the statute. If it means the information that is imputed to every party appearing in a judicial proceeding, the plaintiff’s conclusion is inevitable. On the other hand, if the term is to be understood as meaning actual notice, quite a different phase is put upon the dispute. The benefit of the statute by its own terms is extended to parties; that is to say, to those who have submitted themselves, or have been subjected, to the jurisdiction of the court. It is available alike to the plaintiff and to the defendant. The former is manifestly charged with at least constructive notice of all that occurs in a proceeding instituted by himself; but, notwithstanding this, he can invoke the rule of the statute in proper cases. The situation of the defendant who is in court in invitum is surely not less favorable. If constructive notice will, in all instances, prevent the operation of the statute after one year, then will this section as a remedial measure be utterly emasculated. The only way to give effect to the law, according to its plain intent, is to make the term “notice” a synonym of “knowledge,” to be established either by direct testimony, or by a showing of circumstances proving knowledge to the satisfaction of the court. 2. The county is an artificial person; not having mental perceptions like an individual, it is impossible for it to acquire actual notice or knowledge of any transaction. At best, only constructive notice can be imputed to it. It can act or be acted upon only through its proper agents or officers. If we should hold that mere presump185 tiv.e notice upon an officer of the county would impute knowledge to the county, it would be to found an inference upon an inference, contrary to Section 796, L. O. L., reading thus: “An inference must be founded: 1. On a fact legally proved; and, 2. On such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passion of the person whose act is in question, the course of business, or the course of nature.” In other words, as applied to this case, it is to say: “We infer that the county clerk knew of the decree, because he is an ex officio clerk of the court that rendered it; and we therefore further infer that the county had knowledge of it at the time it was entered.” 3. So far as constructive notice is concerned, there is quite as much, if not more, reason to impute it to the defendant’s counsel as to the county clerk, because they were charged with the management of the particular case at bar. We think on principle, and as held in Fildew v. Milner, 57 Or. 16 (109 Pac. 1092), that for the purpose of the statute “notice” should be held to mean knowledge; and that to bar the county from the benefits of the section in question by lapse of time actual knowledge of the decree by some one authorized to act for the county, or a state of circumstances, in the judgment of the court, equivalent to actual knowledge, is essential. Considering the amount of business that passes through the various courts and the county clerk’s office of Multnomah County, and that much of the clerical part of it must necessarily be transacted by mere employees, we cannot say that the county clerk had knowledge of the decree in question. The attorneys for the county, who in good reason ought to be more likely to know of the state of litigation under their management, have made a sufficient showing that they acquired their first knowledge of the decree only two days before they moved [186] the court to set it aside. The deduction is plain that the application was made in time, and that the circuit court had jurisdiction to entertain and determine it. It then became a matter in the discretion of that tribunal to allow or deny the motion, and, not discovering any abuse of that judicial prerogative, it does not lie with this court to gainsay the decision. That construction of the statute is reasonable.in the interest of remedial justice. It .prevents snap judgments. It only gives opportunity to sound judicial discretion, which we cannot say in advance will be abused in the future. 4. The plaintiff complains of the action of the circuit court denying him right to file a reply and in rendering the consequent decree upon the pleadings. Section 81, L. O. L., prescribes that: “The answer or demurrer to the complaint shall be filed with the clerk by the time required to answer and the demurrer or reply thereto as the case may be must in like manner be filed by the first day of the next term of the court or within one day after the filing of the answer or demurrer to the complaint, if the same be filed in term time. * * ” Under the sanction of Section 2806, L. O. L., a term of circuit court is holden in Multnomah County on the first Monday of every calendar month in the year, except July and August. Remembering that the answer herein was filed October 26, 1910, the reply was due on the following day, if in term time, but at the farthest on the first Monday of November, 1910; but, according to plaintiff’s own abstract, the reply was not offered for filing until December 8, 1910. No showing was made, excusing the delay in filing the reply. Hence the case was ripe for judgment under Section 79, L. O. L., reading as follows: “If the answer contains a statement of new matter constituting a defense or counterclaim and the plaintiff fails to reply or demur thereto within the time prescribed by law the defendant may move the court for such judg [187] ment as he is entitled to on the pleadings, * * and at any time when the pleadings in the suit or action are complete, or either party fails or declines to plead further, the court may, upon motion, grant to any party moving therefor such judgment or decree as may appear to the court the moving party is entitled to upon the pleadings.” In absence of any showing supporting his motion to file a reply, the court was right in refusing leave for that purpose.. The decree of the court upon the pleadings was correct, and is therefore affirmed. Affirmed.