McCully v. Heaverne

Mr. Justice Benson delivered the opinion of the court. 1. Defendant’s first assignment of error is based upon the fact that the court permitted an amendment to the complaint after the expiration of the ten days which had been allowed in which to amend. We need only to remark that amendments of pleadings are discretionary, and there is nothing in the record disclosing any abuse of such discretion. 2. It is next contended that the court erred in denying defendant’s motion to dismiss the suit when plaintiffs rested their case in chief, for the reason that they had failed to make a prima facie one. It is needless to go into the evidence upon this point; for, whatever the condition of the testimony may have been at that time, it was subsequently remedied, and this court has frequently held that a ruling on a motion for nonsuit [653] will not be disturbed when tbe omission, if any, is subsequently supplied by either party: Caraduc v. Schanen-Blair Co., 66 Or. 310 (133 Pac. 636). 3, 4. Defendant then urges as error that the court ignored the effect of a former decree in the case of Heaverne v. Merryman, as county surveyor, which she insists establishes the boundary line according to her contention, and should therefore estop the plaintiffs from claiming the disputed land. There are two reasons why this assignment is without merit. In the first place, it is an affirmative defense which, in order, to be of any avail, must be pleaded, and defendant’s., answer contains no reference thereto: Rugh v. Ottenheimer, 6 Or. 231 (25 Am. Rep. 513); Gladstone Lumber Co. v. Kelly, 64 Or. 163 (129 Pac. 763), and cases there cited. The second reason for disregarding this contention is found in the fact that the former suit referred to appears to be a proceeding under the provisions of Section 2991, L. O. L., which was instituted by defendant against the county surveyor in August, 1910. It appears from the evidence that in 1883 the boundary line was uncertain and in dispute; that plaintiffs and defendant’s grantor had the line surveyed, and agreed that the line so established should be the boundary line, and acted upon such agreement for many years; that the defendant took the land subject to such agreement. This being so, there was no dispute upon which to base the later proceedings, and as to plaintiffs they would be a nullity: Egan v. Finney, 42 Or. 599 (72 Pac. 133). 5. It is also earnestly contended by defendant that the affirmative matter in the reply is a clear depart-, ure from the cause of suit set out in. the complaint. We cannot agree with this. The complaint alleges ownership generally, and, where the defendant by [654] answer denies this and sets np ownership and possession in herself, plaintiffs are undoubtedly entitled to set up facts which disclose the manner in which their title became unassailable. We find no inconsistency in the two. The,remaining assignments attack the sufficiency of the evidence to sustain the findings of the trial court. The evidence is voluminous, and, in some details, conflicting, and the trial court had far better opportunity than we to determine where the truth lay. It is sufficient to say that in our opinion, the weight of the evidence supports each of the findings so made, and they will not he disturbed. The decree of the lower court is affirmed. Affirmed. Rehearing Denied.