West Coast Lumber Co. v. Brady

Justices of the Peace — Appeal—Correction of Record. On appeal from a justice of the peace, when it was found that the amended complaint on which the case was tried was not in the record, the Circuit Court could not authorize a copy to be substituted therefor, the proper proceeding being by application to the justice, and, in the absence of such application, the Circuit Court properly dismissed the ease.

From Multnomah: Henry E. McGtnn, Judge. Department 2. Statement by Mr. Chief Justice McBride. This is an action by the West Coast Lumber Company, a corporation, against Fred J. Brady and Martin Denny. The facts are as follows: The plaintiff brought this action in the Justice’s Court for Portland district to recover for lumber alleged to have been sold and furnished to defendants at their special instance and request. The defendant Martin Denny answered by a general denial, putting the case at issue. After the cause was thus at issue, the plaintiff served on Denny’s counsel an amended complaint, substantially changing the cause of action as to Denny, but either failed to file it, or it was lost from the files. The defendant Denny demurred to the amended complaint, and his demurrer being sustained, plaintiff appealed to tlae Circuit Court. Upon the transcript being filed, it was discovered that the amended complaint was not in the record, and thereupon defendant Denny moved to dismiss the appeal, which motion was overruled, and the plaintiff was permitted to substitute a copy for the original amended complaint and defendant Denny to file an answer thereto. Thereafter, a copy of the amended complaint having been filed, the defendant Denny answered by a general denial, and the plaintiff objected to the filing of the answer on the ground that the answer changed the issue tried in the court below from one of law to an issue of fact, which, being a substantial change of the issues tried in the court below, was inimical to Section 2464, L. O. L. Thereafter the court reversed its ruling upon the demurrer to the amended complaint, and sustained the same; and, plaintiff refusing to plead further, the defendant Denny had judgment of dismissal, from which plaintiff appeals.