Whipple v. Southern Pacific Co.

Me. Justice Mooee,

after stating the facts, delivered the opinion of the court.

1. As a preliminary matter, plaintiff’s counsel move to dismiss the appeal upon the ground that appellant’s printed abstract is not indexed, and does not contain so much of the record as is necessary to a full understanding of the questions presented for decision. The respondent, availing himself of the provisions of rule five of this court, filed an additional abstract,. containing such portions of the omitted record as he deemed essential to a full understanding of the questions involved in the appeal, thus correcting the record in that respect. The objection that the abstract does not contain an index comes too late after respondent has filed his brief upon the merits, and hence the motion is denied.

2. Considering the appeal as made by the record, it is contended by defendant’s counsel that no formal or written answer was required in the justice’s court (Laws, 1893, p. 38), and that, defendant being in court by an attorney, and ready for trial, no judgment could be rendered against it for want of an answer. A defendant appears in an action when he answers, demurs, or gives the plaintiff written' notice of his appearance, and until he does so appear he shall not be heard in such action : Hill’s Ann. Laws, § 530. In McCoy v. Bell, 1 Wash. St. 504 ( 20 Pac. 595 ), under a similar statute, it was held *373 that a defendant, in person or by an attorney, must give notice of his appearance, and that a mere corporal presence of the defendant or his agent at the place of trial is not sufficient, notwithstanding the Code of Washington provided that pleadings, except in certain cases, can be made orally or in writing. See, also, Belknap v. Charlton, 25 Or. 41 ( 34 Pac. 758 ). If the rule was as contended for, and a plaintiff could not take judgment when the defendant was present in court, what an anomalous condition would confront a plaintiff when the defendant appeared in pursuance of the service of a summons, but refused to plead. The pleadings in a justice’s court may be either oral or in writing, but, when oral, the substance thereof must be entered in the justice’s docket: Laws, 1893, p. 38. The transcript of such docket, however, fails to show that defendant’s attorney made any oral statement to the justice which he desired should be entered in the docket as an answer to the complaint, and, as he failed to file a written answer within the time allowed by the court, the defendant was in default when the judgment was rendered.

3. It is contended that the amendment of 1893 (Laws, 1893, p. 38, § 6), which provides that “whenever an appeal shall have been taken from the judgment rendered in the justice’s court, and perfected by giving service and filing the notice of appeal, and giving the undertaking, and filing the. transcript as required by law, the circuit court shall proceed to hear, try, and determine the cause anew, disregarding irregularities and imperfections in matters of form which may have occurred in the proceedings in the justice’s court,” has repealed by implication Section 2117, Hill’s Ann. Laws, which denies the right of appeal from a judgment of a justice’s court given for want of an answer. The amendment relied upon was undoubtedly intended by the legislative assem *374 bly to simplify proceedings in a justice’s court by permitting parties litigant to make an oral statement to the justice, to be entered in Ms docket as a pleading, instead of filing a formal writing constituting a cause of action or defense; but there must be some pleading in that court, or there could be no “matters of form” to be disregarded. The amendment does not, in our opinion, modify section 2117 of the Code; and the judgment, haying been rendered for want of an answer, was not appealable. The circuit court was, therefore, powerless to allow the defendant to file an answer by way of amendment, for, as was said by Mr. Justice Bean in Meyer v. Edwards, 31 Or. 23 ( 48 Pac. 696 ), “Before there can be an amendment, there must evidently be something to amend.”

4. It is insisted that, inasmuch as the action sounds in tort for damages, the appeal was well taken under Hill’s Ann. Laws, § 249, Subd. 2, which provides, in substance, that in all actions of this character, if no answer be filed, the court, without the intervention of a jury, shall assess the damages to which the plaintiff is entitled; that the defendant shall not be precluded by reason of his default from offering proof of the damages, and may appeal from the assessment thereof. A default in an action sounding in damages or tort is an admission that plaintiff has a cause of action as alleged, but by reason of that statute defendant is permitted to controvert the quantum thereof: Deane v. Willamette Bridge Ry. Co., 22 Or. 167 (15 L. R. A. 614, 29 Pac. 440 ). This, however, must be done in the court in which the action was brought, for, under a statute like ours, which prohibits an appeal from a judgment rendered for want of an answer, the default is tantamount to a consent on the part of the defendant that such court shall assess the damages which are sought to be recovered, and that, *375 unless he offers proof in mitigation thereof, the judgment in this respect shall be final. If this were not so, a defendant would not be compelled to plead to such actions or to offer any proof in a justice’s court; thereby making his default serve the purpose of a plea, and his failure to offer such proof equivalent to a trial, and permitting him to appeal from the assessment of damages. Construing subd. 2 of section 249 and section 2117 of the Code in pari materia, we think a defendant who makes default in a justice’s court in an action sounding in tort is confined, in offering proof in mitigation of damages, to the court in which the action was commenced, if he would appeal from such assessment, but, the defendant having neglected to offer such proof in this respect, the circuit court properly dismissed the appeal.

5. But, having proceeded further, and rendered judgment against defendant as in the justice’s court, the circuit court was in error: Fassman v. Baumgartner, 3 Or. 469 ; Long v. Sharp, 5 Or. 438 ; State ex rel. v. McKinnon, 8 Or. 485 ; Neppach v. Jordan, 13 Or. 246 ( 10 Pac. 341 ). The judgment will therefore be reversed, and the cause remanded, with instructions to dismiss the appeal:

Reversed.