Page images

Mrs. Martin Winch, who was regarded, it would be quite natural for Mrs. Reed, who practically as a daughter by Mrs. Reed, and manifestly enjoyed her beautiful residence in · with whom she talked frankly and freely, , Pasadena, to refer to it as her home in a testified that the Reeds went to California on casual conversation and in friendly letters. account of Jr. Reed's health; that after Mr. The oral testimony consists principally of Reed's death she (witness) was with Mrs. the evidence of interested witnesses, who Reed practically all the time up to her death, undertake to relate statements aileged to except during the summers of 1900 and 1903; have been made by both Mr. and Mrs. Reed that witness always understood that Mrs. to the effect that they never intended to reReed's permanent home was in Portland, and turn to Portland to live; that Pasadena was never thought anything else; tbat Mrs. Reed their home, and that they expected to live always kept up her dues in the Ladies Re- there during the remainder of their lives. lief Society and in the Unitarian Church of It is not necessary to prolong the opinion which she remained a member, and when ! by referring to this evidence in detail. We solicited to contribute to Pasadena chari- have read it with care. The declarations, ties, she would say: "That is not my church. or most of them, are claimed to have been My church is in Portland. I give to my made many years ago, and in the course of church just as I always did"; that Mrs Reed casual conversations, or in answer to queslored Carmelita dearly, but always spoke of tions, and are entitled to but little weight. it as Carmelita, and witness never heard her ! Such testimony is admissible in cases of this refer to it as home; that witness never Character, but it is considered by courts as heard her in any shape or manner say that of the lowest species of evidence, especially Pasadena was her lome for the rest of her when, as in this case, it encounters conflictlife or all the time, but often heard her re- ing declarations. Such expressions or decofer to Portland as her home; that she often larations are so much influenced by the cirtalked about California and Oregon people, cumstances under which and the person to and witness had frequently heard her say that whom they are made, and the state of the the people of Pasadena did not seem to un- temper at the time, that they cannot be safely derstand why she would not take the same relied upon when they conflict with each othinterest in their charities and social affairs er, or are inconsistent with the actions and as she did in Portland, but slie said: "That conduct of the parties. I do not do. Portland is my home. That is In Morehouse v. Lord, supra, Lord Chelms. where I am interested, and what I want to ford, in referring to similar evidence, said: do I want to do there”; that when people "There are proved on this occasion, as there would come to her in Pasadena and solicit y usually are in such cases, written and oral contributions she would say: "Why, I have

"Why, I have declarations which conflict with each other. no business here. My business, my office is I lay no great stress, as your Lordships probin Portland and my business agent is there"; ably would not incline to do, upon casual and that so far as witness knew Portland i expressions of preference for one country over is the place she always spoke of as her per- another at different periods. The feelings at. manent home.

! the moment may dictate them, or the chanMr Martin Winch, a nephew of Mrs. Reed / ging circumstances of life; even a change of and her confidential agent and business man- weather, the difference between a bright and ager, and that of her husband during the gloomy day, may make all the difference in latter part of his life, and who, consequently, the expression of attachment to one place or was familiar with her intentions, testified to another; but I do lay very considerable that he always looked upon Mrs. Reed's resi- stress upon declarations made to parties to dence in California as temporary, and thought I whom he would be likely to reveal his intenthat she regarded it the same; that he never tions, those declarations not being casual and heard anything to the contrary, and never occasional, but repeated from time to time, supposed that she had any permanent resi- , and evincing a strong determination to carry dence but Portland.

into effect the objects which he states." The contestants have the testimony of And Mr. Jacobs, in speaking of the weight of numerous witnesses as to alleged declara- to be given to the oral declarations of a tions made by Mrs. Reed concerning her party, says "The time, occasion, and manhome and some letters written by her to rel- ner of making them, their reasonableness and atives and friends. In many of these let- consistency with themselves and with the ters Mrs. Reed expresses her appreciation of other proven facts in the case, the presence the climate of Pasadena, its flowers and or absence of the suspicion of sinister purfruits, and in some of them refers to Car- pose in making them, the character and melita as home, but there is nothing in any temper of the person, as well as (if they are of them to indicate that she used the word oral) the length of time which has elapsed “home” in any other sense than as referring between the time of their alleged utterance to a temporary residence. It is not necessary and the time when they are testified to, to cite authorities or enter into an argument etc., enter materially into the estimation of to show that the word “home” is very fre- their value. If they are not inconsistent with quently used with reference to a place other the acts, and are faithfully reported, they than the legal and permanent domicile, but often serve to turn the scale; but it is other

87 P.-49

wise, if they are contradicted by the acts! they were so deliberately and frequently and general conduct of the person making made as to preclude the idea of carelessness them. The peevish outburst of a person of or inadvertence.” They are circumstances · irascible temper, or the careless expression which, with the deliberate acts of Mrs. Reed, of one whose habits are unstable and whose indicate clearly that her intention was to repurposes are vacillating, are entitled to less tain her domicile in Portland and to dispose weight than the deliberate utterances of a of her property according to the laws of this person of known firmness of character. So, state, and the showing made by the contesttoo, expressions in conversations are of less ants is not such as to require a court to devalue than repeated declarations made to feat her expressed desires as to the devoluproper persons, or declarations in the usual

tion of her property by holding that her domil'ourse of business. Mere declarations that cile was not where she supposed and intended a person prefers a residence in one country to it to be. another, it has been said, will not be regard- The decree is affirmed. ed by a court, except in a nicely balanced case." Jacobs, Domicile, $ 450.

” Within the rules thus laid down, the dec

(18 Or. 525) larations and statements made by Mrs. Reed BROWNELL Y. SALEM FLOURING MILLS to the witnesses for the proponents are mani

CO. festly entitled to more weight than those

(Supreme Court of Oregon. Dec. 4, 1906.) made to the witnesses for contestants. Mrs.

1. APPEAL - DECISIONS REVIEWABLE - JUDG Reed's relation to them was such as made

MENT BY DEFAULT. them proper persons in whom to confide and Under B. & C. Comp. $ 548, providing that with whom to converse frankly with regard

a party to a judgment other than a judgmenr. to her affairs, and to whom she would be

given for want of an "answer" may appeal

therefrom, a defendant declining to plead on likely to reveal her intentions. Mr. Dolph the denial of his motion to strike out parts of was her legal adviser and friend of long the complaint cannot appeal from a judgment standing, a man to whom she would natural

for the sum demanded in the complaint, a mo

tion to strike not presenting an issue of fact ly disclose her real purpose and intent and

or of law within the term "answer" as used in especially so when it was necessary for him the statute. to be informed in regard to that matter in [Ed. Note.For cases in point, see Cent. Dig. order to advise her intelligently and safely vol. 2, Appeal and Error, $ 885.) in her business affairs. Mrs. Winch was to 2. PLEADING – MOTION TO STRIKE OBJECher as a daughter with whom she talked


An error in overruling a motion to strike freely and frankly. Mr. Winch was her

parts of a pleading can be corrected by objectnephew and business agent and would cer- ing and excepting to the admission of the evitainly have known of any intent on her part dence establishing the issue raised by the mat. or that of her husband to change their domi

ter sought to be struck out and an answer con

troverting the same, and requesting an instruccile from Portland to California, and yet he

tion not to consider such evidence. testified that he never knew or heard of any

[Ed. Note.-For cases in point, see Cent. Dig. contemplated change. Mr Patterson was a vol. 39, Pleading, § 1172.) friend, and Miss Stevens was her maid. These witnesses were all in positions to know

Appeal from Circuit Court, Marion County ;* more of Mrs. Reed's intent and purpose than

George H. Burnett, Judge. other witnesses in the case. They are all

Action by S. S. Brownell against the Salem disinterested, without any object to gain or

Flouring Mills Company. From a judgment purpose to advance by exaggeration or dis

for plaintiff, defendant appeals. Appeal dis

missed. torting the truth. Indeed, Mr. Winch, who is a nephew of Mrs. Reed and one of the Geo. G. Bingham, for appellant. W. T. legatees in the will, would find his interest Slater, for respondent. largely increased if the contestants could succeed.

MOORE, J. This is a motion to dismiss an The time, occasion, and manner of making appeal on the ground that the judgment the declarations to these witnesses, the fact sought to be reviewed was given for want of that such declarations were frequently re- an answer. A motion to strike out parts of peated and always consistent with each other the complaint was denied, and, the defendand with the solemn declarations made by ant declining further to plead, judgment was her in her several wills and written instru- rendered against it for the sum demanded, ments, strongly corroborate the inference as from which an appeal was attempted to be to residence to be drawn from Mrs. Reed's taken. The statute, prescribing an appealacts and conduct. They were not expressions able decision of a court, contains the followlet drop in mere casual conversations or con- ing provision : "Any party to a judgment or tained in friendly letters, but, as said by decree other than a judgment or decree Chase, J., in Cruger v. Phelps (Sup.) 47 N. given by confession, or for want of an anY. Supp. 61: "Were made when there was swer, may appeal therefrom.” B. & C. no controversy, and cover such a long period Comp. § 548. Any pleading on the part of of time as to preclude the idea of their being the defendant that interposes an issue of made with reference to property rights, and factor of law is, in a general sense, de

nominated an "answer," and, under this very Action by H. E. Noble against M. E. Wat. liberal definition, the formal mode of dis- kins and others, in which Florence E. Godputing the sufficiency of the plaintiff's pri- | frey intervened. From an order sustaining mary pleading comes within the meaning of a demurrer to intervener's bill, and from a this term. Boone, Code Pl. § 58. Thus, when decree in favor of plaintiff, intervener apa demurrer to a complaint is overruled, and, | peals.

peals. Affirmed. the defendant refusing further to plead, a

This suit was commenced on January 26, judgment or a decree is rendered against him,

1904, by H. E. Noble to foreclose a mortgage he may appeal therefrom on the ground that

given by defendant Watkins and wife to one the issue of law thus tendered constitutes an

D. D. Tennyson on certain real property in answer. Kearns v. Follansby, 15 Or. 596, 16

Columbia county to secure the payment of Pac. 478; Hendy Machine Works v. Portland

a promissory note for $800 in favor of TennySavings Bank, 24 Or. 60, 32 Pac. 1036; Willis

son, dated December 23, 1896, due one year v. Marks, 29 Or. 493, 45 Pac. 293. An applica

after date, which note and mortgage, it is tion for an order is a motion. B. & C. Comp.

alleged, were assigned and transferred to $ 534. Its purpose, when a defect in a plead

the plaintiff by Tennyson on August 1, 1903. ing exists, is particularly to point out some

After the issues had been made up, but bealleged irrelevant or redundant matter there

fore trial, Florence E. Godfrey, claiming to in which may be stricken out. Id. $ 86.

be an interested party, filed a bill of inter"There can be no doubt," says Mr. Chief

vention, by leave of the court, in which she Justice Lord, in The Victorian, 24 Or. 121,

alleged that on January 14, 1904, and be32 Pac. 1010, 41 Am. St. Rep. 838, “that the

fore the commencement of the suit, Tennyson, object of a motion to strike out is not to per

for a valuable consideration, made, executed, form the office of a demurrer." The suffi

and delivered to her "a certain instrument ciency of a pleading, as to matters of sub

in writing as his certain deed of conveyance stance, must be tried on a demurrer, but,

and transfer of that certain note and mortwhen the manner of stating the facts is

gage mentioned in the original complaint defective for noncompliance with the rules of

herein, together with the debt evidenced and pleading, the remedy for its correction is by

secured by the same, and your orator, for motion. 14 Enc. Pl. & Pr. 91. A motion, call

a valuable consideration, in good faith acing attention to a defective statement in a

cepted said deed as such transfer and conpleading, does not present an issue of fact

veyance of said note, debt, and mortgage or of law, and hence cannot, under the most from said Tennyson, and shortly thereafter, liberal rule, be classed as an "answer.”

and on the 18th day of January, 1904, duly It must be admitted, as was argued by and properly placed the same on record in defendant's counsel, that, if a motion to

said Columbia county, Or.; that it was the strike out irrelevant or redundant matter

Intention of said Tennyson and your orator, from a complaint be denied and such matter

at the date of the execution of said deed, to is controverted in the answer, the issue thus give and receive a formal and legal assignmade is immaterial. An error committed

ment and conveyance of said note, debt, and in overruling a motion to strike out can be mortgage, but by mistake and inadvertence corrected, however, by objecting and except- the said deed was made and executed and ing to the admission of evidence tending to accepted by your orator in good faith, and establish such issue, and also requesting an without notice, or knowledge on her part of instruction not to consider such evidence,

any former transfer to or claim by said H. which, if denied, the action of the court in

E. Noble, if any in fact there be." It is then this respect will be reviewed on appeal.

reviewed on appeal. alleged that immediately after the execution Krewson v. Purdom, 11 Or. 266, 3 Pac. 822; and recording of the deed from Tennyson to Thomas v. Herrall, 18 Or. 546. 23 Pac, 497. Mrs. Godfrey she entered into possession of

It follows from these considerations that the mortgaged premises with the consent and the appeal must be dismissed, and it is so acquiescence of Watkins, and has ever since ordered.

remained in the possession thereof; that the

alleged assignment and transfer of the note (48 Or. 518)

and mortgage from Tennyson to Noble, menNOBLE V. WATKINS et al. (Godfrey, In- tioned in the coinplaint, was not recorded, tervener.)

and is, therefore, inferior and subject to her (Supreme Court of Oregon. Dec. 4, 1906.) claim; that she is now the owner and holder MORTGAGES MORTGAGEE IN POSSESSION of said note and mortgage, and entitled to

CONVEYANCE – EFFECT – ASSIGNMENT OF foreclose the same. The prayer is that she
Since a mortgage on real estate constitutes

be substituted as plaintiff in the suit brought only a lien or incumbrance on the land, a con

by Noble, and for a decree in her favor. A veyance of the mortgaged property by the mort- demurrer was sustained to the bill of intergagee to a stranger did not operate as an as- vention and decree entered in favor of plainsignment of the mortgage as against third per

tiff, from which Mrs. Godfrey appeals. sons, where the language of the conveyance did not manifest such intent.

Wm. A. LaForce and J. B. Godfrey, for apAppeal from Circuit Court, Columbia Coun- pellant. Richard W. Montague, for respondty; Thomas A. McBride, Judge.


BEAN, O. J. (after stating the facts). Sev- 2. CONSTITUTIONAL LAW - POLICE POWER eral objections are made to the regularity


Where a city granted to Z. and his assigns and validity of the decree appealed from,

the right to establish and maintain a packing such as that the complaint does not state facts house on particularly described premises, after sufficient to constitute a cause of suit, the which Z. expended a large sum of money in the decree is not supported by the evidence, and

improvement of the property on the faith there

of, the ordinance constituted a mere temporary the like; but none of them are such as Mrs.

license and not a contract which a city was Godfrey can raise unless her bill of inter

prohibited by the state or federal Constitution vention shows that she has an interest in the from impairing by the subsequent repeal of the litigation which entitles her to be made a



Though the maintenance of a slaughterIt is not entirely clear from some of the house is a legitimate business, the place where allegations of her bill what she bases her it is conducted may, by reason of its proximity claim to intervene in the pending litigation

to the residence portion of a city or village de

mand its removal, though it may have been upon. But, taking all the averments in con

established pursuant to a statute or an ordinection with the admissions of her counsel nance authorizing it. in his brief, it is founded upon a deed of 4. NUISANCE-SLAUGHTERHOUSE. conveyance from Tennyson of the mortgaged

The occupation of a building in a city as a

slaughterhouse is prima facie a nuisance to perpremises. Such a deed did not operate as

sons residing near it. an assignment of the note and mortgage giv

[Ed. Note-For cases in point, see Cent. Dig. en by Watkins and wife to Tennyson, nor vol. 37, Nuisance, SS 143, 151.] did it convey any interest in the mortgaged 5. MUNICIPAL CORPORATIONS-ORDINANCES property. In jurisdictions where mortgages PROHIBITION OF SLAUGHTERUOUSES - REconvey the legal title, it has been held that


After the repeal of an ordinance granting a deed of absolute conveyance by the mort

Z. and his assigns the right to maintain a gagee of the mortgaged premises will oper- | packing house within the limits of a city, the ate as an equitable assignment of the note city council passed an ordinance making it unand mortgage, when at the time of its execu

lawful for any person to slaughter within the

city limits any animal, the flesh of which was tion the mortgagee was in possession. 20

intended to be offered for sale. After this the Am. & Eng. Enc. Law (2d Ed.) 1029; Welch city, under Sp. Laws 1903, p. 30, granting it v. Phillips, 54 Ala. 309, 25 Am. Rep. 679. But

the power to regulate, restrain, and exclude where, as in this state, a mortgage on real

from the city slaughterhouses, passed another

ordinance authorizing the operation of defendestate does not convey an interest in the land, ants' slaughterhouse within the city limits withbut constitutes only a lien or incumbrance out any clause restricting violations of the thereor (Anderson v. Baxter, 4 Or. 105; Sell

previous ordinance or with reference to penal

ties incurred thereunder. Held, that the latter wood v. Gray & De Lashmutt, 11 Or. 534,

ordinance was only operative prospectively, and 5 Pac. 196; Marx v. La Rocque, 27 Or. 45, did not repeal the prohibitory ordinance in re39 Pac. 401; Security Trust Co. v. Loewen- spect to violations thereof committed prior to berg, 38 Or. 159, 62 Pac. 6-17), it is clear that

the passage of the later ordinance.

6. SAME-PROSECUTIONS FOR VIOLATIONS OF an instrument executed by the mortgagee

ORDINANCES-EVIDENCE-RELEVANCY. which purports to convey to a stranger the Where defendants were charged with unmortgaged property cannot operate as an as- lawfully killing animals, within the limits of a signment of the mortgage as against third

city, the flesh of which was intended to be sold,

and also with maintaining a slaughterhouse persons, unless the language of the convey

within such territory, evidence that the operaance is such as to manifest an intention to tion of the slaughterhouse by a corporation tendthat end. Swan v. Yaple, 35 Iowa, 248; John- ed to create a nuisance was irrelevant. son v. Lewis, 13 Minn. 364 (Gil. 337). Mrs.


Where, in a prosecution for unlawfully Godfrey, therefore, had no interest in the

killing animals within the limits of a city, the mortgage or in the mortgaged property that

flesh of which was intended for food, and also would entitle her to intervene in the pending with maintaining a slaughterhouse within such litigation.

territory, defendants admitted the charge but

claimed immunity therefrom, and the cause was The averment in the bill that she is the

tried without the intervention of a jury, defendowner and holder of the note and mortgage ants were not prejudiced by the erroneous adis manifestly the conclusion of the pleader mission of evidence that the operation of the from the facts stated, and cannot be regard slaughterhouse by the corporation tended to

create a nuisance. ed as an averment of a fact. Decree affirmed.

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by the city of Portland against J. H.

Cook and others. (48 Or. 550)

From a judgment for CITY OF PORTLAND v. COOK et al.

plaintiff, defendants appeal. Affirmed. (Supreme Court of Oregon. Dec. 4, 1906.)

S. B. Linthicum and Zera Snow, for ap


MOORE, J. This action was commenced The police power of a state may be delegated to a municipal corporation located therein.

April 7, 1905, in the municipal court of Port{Ed. Note.-For cases in point, see Cent. Dig.

land by that city against J. H. Cook, James vol. 36, Municipal Corporations, 8 1309.) M. Neal, and T. W. Bigger for an alleged

[ocr errors]


violation of an ordinance, prohibiting the ter of animals and the inspection of meats, killing, within the city limits, of animals, from which we take the following excerpts, the flesh of which was intended to be sold, deeming them the only parts thereof involved and also forbidding the maintenance within herein: Section 3. "That from and after such territory of a slaughterhouse. The the passage of this act it shall be unlawful cause was tried and the defendants were con- for any person, firm or corporation to slaughvicted, June 30th of that year, and severally ter, sell, or offer for sale the meat of any aniadjudged to pay a fine, from which sentence mal not considered 'game,' intended for

' they appealed to the circuit court for Mult- human food, within the city of Portland, nomah county, where they were again tried unless the same has been inspected and apon a stipulation of facts, a jury having been proved by the officers appointed and empowwaived, and, their motion to be acquitted ered by the city board of health.

* " having been overruled, they were again Section 6. "That the Pacific States Packing found guilty, and appeal to this court from Company be known as 'the Portland Abattoir' the judgment which followed. The facts so where animals may be taken for slaughter stipulated are to the effect that, pursuant to and be inspected, and that not more than the a clause of the municipal charter then in following prices may be charged and colforce, which authorized the council “to li- lected by the person or corporation who now cense, tax, control and regulate slaughter- are or who may hereafter be operating the houses,

and to provide for their Portland Abattoir, or such other place or exclusion from the city or any part thereof" places as may be fixed by the board of health (Laws Or. 1891, p. 806), ordinance No. for slaughtering animals intended for human 9641 was passed, February 12, 18996, granting food within the city of Portland. to “L. Ziminerman and his assigns" the right Section 15. "That the firm, person or corto establish and maintain on his land in poration violating any of the provisions of the city of Portland, particularly describing this ordinance shall, upon conviction, be fined the premises, a packing house for curing all not less than ten ($10.00) dollars, nor more kinds of meatand to erect other buildings than twenty-five ($25.00) dollars for each in which to slaughter animals. Thereafter offense.

Section 16. "That this Zimmerman, who then was, ever since has ordinance shall take effect from and after been, and nov is, the owner in fee of the its passage, the welfare of the city requiring real property so described, erected thereon the specified buildings, expending in such im- It is contended by defendants' counsel that, provements more than $10,000, but subse- conformable to the provisions of the municiquent thereto an ordinance was passed, re- pal charter quoted, ordinance No. 9641 was pealing ordinance No. 9641. Notwithstanding passed, granting to Zimmerman the rights such abrogation, Zimmerman thereafter con- hereinbefore stated, acting on the faith of tinued to operate the business until Novem- which he expended a vast sum of money in ber 1, 1901, when he leased the real property making permanent improvements upon the mentioned for a term of five years to the real property specified, whereby such right beNorthwestern Meat Company, a corporation, came a subsisting contract between him and which, with his corsent, sublet the premises the city which could not be impaired by subfor the remainder or the term to the Pacific sequent legislation; that, the grant having alStates Packing Company, a like artificial be- so been extended to his assigns, the defending. The defendants, Cook, Neal, and Bigger, ants, as agent of the corporation which seare the president, manager, and secretary, cured a lease of the premises with his consent, respectively, of the corporation last mention- had the same authority that he possessed to ed, and, as the agents thereof, were, on April conduct the business thereat, subject only to 7, 1905, when this action was begun, engaged municipal regulation that the slaughterhouse in killing, within the city limits and on the should not become a public nuisance or detland so leased, animals, the flesh of which rimental to the health of persons residing in was intended to be sold, and were also main- the vicinity, and hence the circuit court taining on such premises a slaughterhouse. erred in refusing to give a judgment of acAt that time ordinance No. 13,885, adopted quittal. The preservation of the public April 6, 1904, was in force and provided that health and public morals is a duty devolvit should be unlawful for any person, within ing on the state, the discharge of which is the city limits, to kill any animal, the flesh denominated an exercise of the police power. of which was intended to be offered for sale, This prerogative, though incapable of exact or to maintain or use, within such territory, definition or limitation, may be delegated by any building as a slaughterhouse, and pre- the state to its agent, a municipal corporascribing as a penalty for a violation there- tion, which is authorized to employ the measof a fine of not less than $5 nor more ure of authority conferred. As the perpetuthan $300, or imprisonment not less than ity of a stable government necessarily defive days nor more than 90 days. After pends upon the security of the public health this action was commenced, but before it and the maintenance of public morals, neiwas tried in the municipal court, ordinance ther the state nor its agent can bargain away No. 14,639 was passed, regulating the slaugh- this branch of sovereignty. As a corrollary

« PreviousContinue »