State v. Pacific Live Stock Co.

BENNETT, J. 1. The principal question presented in the case, is as to whether a plaintiff may take a — 198 — voluntary nonsuit under the provisions of Section 182, L. O. L., made applicable to suits in equity by Section 410, L. O. L., after a demurrer has been filed and disposed of. The question has been very ably and exhaustively briefed and presented, by the attorneys on each side, and depends entirely upon the construction of the first clause of Section 182, reading as follows : “A judgment of nonsuit may be given against a plaintiff, as provided in this chapter — on motion of the plaintiff, at any time before trial, unless a counterclaim has been pleaded in defense.” It is strenuously and plausibly urged on behalf of defendant that the hearing upon the demurrer and the decision thereon was a “trial” of an issue of law, and therefore terminated the right to a voluntary non-suit under said clause, and Hume v. Woodruff, 26 Or. 373 (38 Pac. 191), and Ferguson v. Ingle, 38 Or. 43 (62 Pac. 760), are cited to support the contention. The plaintiff, on the other hand, contends that the hearing upon a demurrer is not a “trial” within the meaning of Section 182, where the demurrer is overruled and the defendant answers, thus putting the case at issue*; and cites Hutchings v. Royal Bakery, 60 Or. 48 (118 Pac. 185), to sustain the contention upon its part. It seems to us the contention of the plaintiff must be sustained. There can be no doubt under our statute but what the hearing upon a demurrer is some sort of a “trial”: Section 109, L. O. L. But the word was not used in that sense in Section 182, L. O. L. Section 113, L. O. L., evidently creates and recognizes two distinct meanings of the word “trial.” One is a “trial” of an issue of law, and the other is the “trial of an issue of fact.” That these two classes — 199 — of trials are entirely distinct and.separate things is very clear by reference to the section following: Section 114, L. O. L. They are tried at different times by separate tribunals. An issue of law is tried before the judge, and an issue of fact is ordinarily tried before a jury. In other words, the word “trial” as defined in the Code covers two distinct and separate proceedings. It is like many other words in the English language, which have different meanings, and are sometimes used with one meaning and sometimes with the other. Certainly, the legislature had some definite period in the litigation in mind when the right to a voluntary nonsuit should be extinguished. Here, then, were two separate adjudications to which the word trial might apply. One a preliminary trial by the court of an issue of law, and one a trial upon the merits before a jury. The question is, To which of these did the legislature refer in Section 182? This question we must solve by reference to the context, the subject matter, and the meaning with which the same word “trial” is used by the legislature in other sections of the Code. That the word is used in the sense of a final trial upon the merits in other sections of the Oregon Code is very plain. Section 45 provides that,— “The court, or judge thereof, may change the place of trial, etc.” Section 46, L. O. L., provides, this motion can only be made after the cause is at issue upon a question of fact. So it is plain that the word “trial” in Section 45, supra, had reference only to the trial of a question of fact upon the merits. Section 102, L. O. L., provides; — 200 — “The court may, at any time before trial, in furtherance of justice, * # allow any proceeding or pleading to be amended by adding the name of a party, etc. ’ ’ It seems perfectly clear that the words “before trial” in that section refer to a trial upon the issues of fact. A like use of the word is again made in Section 105. Indeed, in Section 182, subdivision 3, the word “trial” is used three different times by the legislature, and every time with plain reference to a trial on the merits. It seems to me, that where we find the same word “trial” is used so frequently in other places in the Code and even in the same section, and always, or even generally, with entire reference to a trial on the merits, we may reasonably assume it uses thé word in this instance with that meaning. In Warm Springs Irr. Dist. v. Pacific Livestock Co., 89 Or. 19, 22 (173 Pac. 265), this court had occasion to define the meaning of the word, as used at still another place in the Code, where a provision is made in condemnation proceedings for the fixing of a reasonable attorney’s fee by the court at the “trial.” Mr. Justice BeaN, delivering the opinion of the court, said: “For various purposes, a hearing on a demurrer is a trial and so is the hearing on the question of attorney’s fee, as suggested by counsel; but does the statute mean such a trial, or does it mean a trial of the subject matter of the action. The subject of the litigation is the damages to the property proposed to be taken. Hearing on demurrer, attorney’s fee, motion, or trial is not ‘the trial’ as to the subject of the litigation, but of matters merely, incident to and growing out of the litigation of the 'subject matter of the action. • — 201 — “When the lawmakers provided that in such a proceeding a reasonable attorney’s fee should be fixed by the court ‘at the trial’ it is apparent from the examination of the whole section and of all of the provisions for proceedings in condemnation that they had in mind the main or final trial of the cause. ” This case was tried in banc and the definition of the word “trial,” as used in that section, was concurred in by every member of* the court. In Hume v. Woodruff, 26 Or. 373 (38 Pac. 191), Mr. Justice Beau, delivering the opinion of the court, says: “An issue of law arises upon a demurrer, * * and, since a defendant may demur upon the ground ‘that the complaint does not state facts sufficient to constitute a cause of suit’ * * it would seem to follow that the determination of an issue presented by such a demurrer, is a trial of the cause within the meaning of the statute * * and, as a consequence, that after the disposition thereof a plaintiff is not entitled to a voluntary nonsuit, unless by leave of the court an amended complaint is filed.” In that case that question was really not before the court, for an amended complaint had been filed, and the court held that under the pleadings actually presented, the plaintiff did have a right to the voluntary nonsuit. In Ferguson v. Ingle, 38 Or. 43 (62 Pac. 760), the condition was exactly the same, and again the cause was reversed because a voluntary nonsuit had been refused after the demurrer had been sustained, and an amended pleading had been filed. In Hutchings v. Royal Bakery, 60 Or. 48 (118 Pac. 185), the defendant filed a demurrer, which was overruled, as in this case, and the cause came on for trial before a jury. After the jury had been formed and — 202 — several -witnesses bad testified, the plaintiff moved for a voluntary nonsuit and his motion was allowed. After a very careful consideration of the authorities by Mr. Justice BeaN, this action was affirmed. In that case there was a dissent by Mr. Justice McBeide, but as I read the dissenting opinion, it was his judgment also, that the voluntary nonsuit could be taken, up to the time of the commencement of the trial upon the facts. The whole court was apparently unanimous that it did not end with the hearing upon the demurrer, which had been filed and disposed of in that case. Of course, if the plaintiff could take a voluntary nonsuit at any time during the trial on the facts, it follows by stronger reasoning that he could take it at any time before the trial. It is true this decision was in an action at law, but it seems under Section 404, L. O. L., which makes.Section 182 applicable to equity suits, the same reasoning must apply. The same result seems to have been reached by the entire court in the case of Currie v. Southern Pac. Co., 23 Or. 400 (31 Pac. 964), in which the action had been commenced in the Justice’s Court. An answer had been filed, and a demurrer to the answer, which was sustained in the Justice’s Court. The case was appealed to the Circuit Court and there it came up again and the demurrer was again argued and submitted. The Circuit Court overruled the demurrer. The plaintiff then filed a reply and the defendant moved to strike out the reply, thus raising still another issue of law. The motion was denied and the defendant then “demurred to the reply,” raising a third issue of law. There was a verdict for the plaintiff. The judg — 203 — ment on this verdict was reversed on appeal, on the ground that the conrt should not have permitted the filing of the reply, and the conrt remanded the case for a trial upon the issues presented by the complaint and answer: See same case, 21 Or. 566 (28 Pac. 884). When the case got hack to the Circuit Court and being then pending upon the issues of fact, and the demurrer to defendant’s answer still standing as overruled by the court, and there being no amended pleading filed, the plaintiff moved for a voluntary nonsuit. This was allowed and upon a second appeal the Supreme Court held that the motion was not too late. Chief Justice Lord, delivering the opinion, said: “The Code provides that a nonsuit can be taken by the plaintiff at any time before trial, unless a counterclaim has been pleaded as a defense. * * At common law the plaintiff might take a nonsuit, as of right, at any time in the progress of the trial he might prefer, and thereby reserve to himself the power to bring a fresh action for the same subject matter; and this right continued until after the verdict was rendered, but ended with the entry of the judgment. * * Nonsuits are classed under two divisions: (1) Involuntary, as when ordered by the court against the plaintiff’s objection; (2) Voluntary, when allowed by the court on the plaintiff’s own motion; * # and it has been uniformly held that a voluntary nonsuit will not deprive a plaintiff of his right to try the case a second time, when, .with more favorable conditions, he may attain greater success than in the first case. This explains why nonsuits are so frequent. It has been well said that a ‘nonsuit is like the blowing out of a candle, which a man at his own pleasure may light again. ’ * * While there is some difference in the practice of the states, in many it is provided, as in Oregon, that a nonsuit may be taken at any time before the trial. As the case stood, no trial had been had when the nonsuit was asked by the plaintiff and allowed by — 204 — the court. Black, J., said that ‘there is no case which decides that the plaintiff may not become nonsuited on his own motion, or that he may not, if he pleases, discontinue or withdraw his .action. ’ * * Since the plaintiff had the right to take a nonsuit so as to prevent an adjudication on the merits, and to enable him to begin over again if he so desired, no right of the defendant was denied. ’ ’ If Hume v. Woodruff and Ferguson v. Ingle are inconsistent with these opinions, they should he considered, it seems, as overruled by the latest decision in Hutchings v. Royal Bakery Co., but I think the point actually decided in the Hume case and in the Ingles case, and the logic of those decisions, support the Hutchings case, although there is an intimation by way of dictum in the Hume case, which is perhaps, to the contrary. But it was actually decided therein that a voluntary motion for a nonsuit was permissible after a demurrer had been filed and passed upon. While it is true, an amended pleading in a cause eliminates the original pleading, yet it could not eliminate the fact that there had been a trial, of an issue of law in the cause, and, therefore, if the statute is to be construed as prohibiting a voluntary nonsuit, unless it is offered before a trial upon a demurrer, the voluntary nonsuit would be logically too late, after such an issue of law had been tried and disposed of in the cause, without regard to the amendment. It seems to me also that the fact that the meaning of the word “trial,” as applied to the decision upon the merits, is one of common use, while the other meaning, as applied to the hearing upon an issue of law, is technical and unusual, is important in concluding as to which sense the word was used in, by the legislature. — 205 — In ordinary language we speak of a “trial” of the issues of fact, and of a “hearing” on a demurrer. Bouvier defines trial as, “The examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause. * * The examination of the matter of fact in issue in a cause. The decision of the issue of fact. ’ ’ As I understand it, the Bar of the state has always in actual practice, recognized and asserted the right of the plaintiff to take a voluntary nonsuit at any time, before the trial on the merits commenced; and it seems to me a decision to the contrary would revolutionize the practice. In actual practice a general demurrer is filed in nearly every case, in the lower courts. Sometimes this is done, because the complaint is thought to he really defective; sometimes because an inexperienced attorney wishes to save upon the record, any point which may subsequently develop; and quite often it is intended as an appearance to prevent a default, until the attorney is ready to prepare an answer. These demurrers are submitted and formally passed upon by the court, either with or without argument. This occurs at the very commencement of the case. To hold that the submission of these demurrers and the decision of the court thereon terminates the right to a voluntary nonsuit would be to practically destroy that right altogether and render it entirely worthless to the plaintiff. It does not seem to me that the legislature could have intended any such result. It is not necessary in this case to decide what would be the rule as to dismissal if the defendant stood upon his demurrer, or if the demurrer was sustained, and the plaintiff did not amend. But we hold that where, — 206 — in a suit, the defendant has filed a demurrer, which has been overruled, and the defendant has answered, the plaintiff may take a voluntary nonsuit as a matter of course (there being no counterclaim) at any time before the trial of the issues of fact. The only other question presented in the easp is whether or not the' defendant had pleaded such a counterclaim, as would prevent the plaintiff from a voluntary dismissal of the case. 2. The only affirmative defenses pleaded are in the nature of laches, estoppel and adverse possession. There is no setting up or pleading of a cloud upon the title, or an adverse claim by the plaintiff. In that regard, if the defendant sought to take advantage of any such adverse claim, he would have to depend upon the allegations of plaintiff’s complaint and not upon the allegations of his own pleading. Neither was there any prayer to have any claim upon the part of the plaintiff adjudicated, or for any claim of affirmative relief of any character, unless that should be implied from the general equity prayer. While the affirmative defenses set forth in defendant’s pleading might perhaps be sufficient as a defense, yet they were not sufficient considered independently of the -original bill, to give the defendant ground for affirmative relief. ' A counterclaim in an equity suit under our practice is much in the nature of a cross-bill under the old equity practice, and in such a bill the defendant could not rely upon the allegations in the original complaint. “A cross-bill must be as complete and perfect as an original bill, and must be good within itself, not relying upon reference to the original bill for any of its essential averments”: 16 Cyc. 330, § F. — 207 — So, under our practice, it is said in Le Clare v. Thibault, 41 Or. 601, 608 (69 Pac. 552): “An answer setting up a counterclaim must contain the substantial requisites of a complaint, and allege facts which legally entitle the defendant to recover in a suit instituted by him for that purpose against the plaintiff; and, if his pleading omits any allegation that would be necessary to state a cause of suit, it will be vulnerable to a demurrer interposed on that ground. ’ ’ In Templeton v. Cook, 69 Or. 313, 317 (138 Pac. 230), it is said: “A counterclaim permissible in an equity case shall be one upon which a suit might be maintained by the defendant against the plaintiff in the suit.” In Maffett v. Thompson, 32 Or. 546, 551 (52 Pac. 565, 53 Pac. 854), it is said: “In so far as it was designed to afford affirmative relief, the counterclaim here provided for takes the place of the cross-bill under the chancery practice, as it formerly prevailed. * * Under that practice, which still obtains in many jurisdictions, if the cross-bill sets up matters purely defensive, and prays for no affirmative relief, a dismissal of the original bill necessarily disposes of the cross-bill also.” In Dove v. Hayden, 5 Or. 500, the question here presented was directly before the court, and the court said: “The substantial question presented by the motion to dismiss, is, whether any counterclaim to-the plaintiff’s cause of suit, is set up in the answer. Unless the facts there alleged constitute a counterclaim, the judgment of nonsuit on the motion of plaintiff was properly granted, * * The counterclaim, therefore, which the defendant is authorized to interpose, must be one upon which a suit might be maintained by the defendant against the plaintiff in the suit.” — 208 — In Chance v. Carter, 81 Or. 229, 239 (158 Pac. 947), it is said by Mr. Justice Harris : > “Furthermore, while the answer pleads enough to conform to a special provision of the statute applicable to actions in ejectment, nevertheless the pleading does not, strictly speaking, set forth a cause of action, because, if the new matter stood alone, it would not contain all the elements necessary for a cause of action; nor would the new matter in the pleading by itself be' a complete statement of a cause of suit. Repeated decisions have declared that a counterclaim must be complete in itself, and state facts which show that the defendant is entitled to recover from the plaintiff if an action had been instituted for that purpose. ’ ’ Here, upon an inspection of the answer, it will be noticed, there is no affirmative allegation whatever, that the State of Oregon was asserting or making any claim to the land in question, or that any such claim was in any way a cloud upon defendant’s title. Is it not perfectly plain that if the defendant was attempting to ask affirmative relief, upon a complaint of its own, in a suit brought independently by it, it would have no cause of suit whatsoever, without such an allegation? Then when we apply the doctrine presented by Mr. Justice Harris in the Carter case, and so universally established, that a counterclaim, like a cross-bill, must contain every essential element of the defendant’s right to recover, which is necessary in an independent suit. Is it not entirely clear that there was no counterclaim pleaded, and indeed no intention to plead a counterclaim, even if the answer had been in other respects entirely sufficient? In this regard the absence of a prayer for the quieting of title, or the settling of any adverse claim, is significant. Probably such a prayer would not always be necessary if all the — 209 — other requisites of a good bill in equity were present; but the absence of such a prayer is strong evidence that there was no intention to plead a counterclaim, and, as it seems to me, a sufficient counterclaim was in fact not pleaded. In passing upon the case we have not considered the question of whether or not the defendant could maintain any claim for affirmative relief against the state, if the pleadings in that regard were otherwise sufficient. As to this, there is at least very grave doubt, as shown in the opinion of Mr. Justice Habéis, but to my mind it is so clear that there was no counterclaim pleaded, a decision upon the other question seems unnecessary. It is urged that the dismissal of this case works a hardship upon the defendant, since it leaves an uncertainty in regard to the title to all of that large tract of land included in the first complaint and not included in the second. We hardly see how the condition of the defendant, in that regard, can be any worse than it would have been if the original suit had not been brought in the first place. The embarrassment, if any, seems to arise from the fact that the defendant cannot, under our Constitution and laws, bring an independent suit against the state to adjudicate its title. But this is a matter for the legislative power of the state, with which we cannot interfere. The judgment of the court below should be affirmed. AFFIRMED.