The opinion
On Rehearing
( 17 P. (2d) 323 )
KELLY, J.
Upon rehearing, it is argued that defendant, Union county, may invoke the pleading of its codefendants as a basis upon which to assert a defense not pleaded in the answer of said defendant, Union county, namely, the defense of another suit pending and res judicata. This was not urged upon the original hearing, but, on the other hand, defendant, Union county, then contended that such defense could be made without affirmatively pleading it.
In the amended answer of defendants, Couch, Stevens and Ledbetter, and in the further and separate answer and defense of defendant Elmer S. Morris, administrator of the estate of Mike Morris, deceased, to plaintiff’s supplemental complaint, reference is made to a claim by plaintiff, being filed in the county court of Union county, covering the same items of alleged damages which plaintiff claims in- the case at bar.
In the further and separate answer of defendant Ella E. Fisher, administratrix of the estate of Julius Fisher, it is alleged:
“I. That in a proceeding instituted for the changing, and rock surfacing of, a public highway in Union county, Oregon, entitled £In the matter of altering, reestablishing and changing the direction of a portion of the Alicel-Lower Cove Road’, in the county court of the state of Oregon,- on the 6th day of December, 1928, by resolution; proceedings were had in said court in said matter, and at the time prescribed by law and set by the said county court sitting for the transaction of county business for the hearing of complaints and
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claims for damages claimed by persons across whose premises said road was proposed to be located, among other things, the following claim and petition was filed in the office of the county clerk and ex officio clerk of said county court by the plaintiff herein:
“ ‘In the County Court of Union County, Oregon. “ ‘In the matter of the proposed location of a public highway on the southeast quarter of section 20, township 2 south, range 40 E. W. M., Union County, Oregon. Petition.
“ ‘Comes now Ethel M. Kerns and petitions as follows, viz:
1.
“ ‘That the petitioner is the owner of the southeast quarter of section 20, township 2 south, range 40 E. W. M. in Union County, Oregon.
2.
‘ ‘ ‘ That the public highway which said county court, under resolution adopted by it December 6, 1928, proposes to locate on said premises will appropriate about five acres of land; that if said highway is located as proposed it will enter said premises which
is
agricultural and dairy land, at the northeast corner thereof and meander diagonally through said premises to the southeast corner and will permanently divide said premises into two tract of approximately equal size, and will permanently and seriously damage said premises for the purposes for which it is now and for many years has been used, or for any other purpose to which it could be adapted.
3.
“ ‘That by reason of the foregoing facts petitioner will be damaged in the sum of $3,000.00 by the location of said highway.
“ ‘Wherefore, Your petitioner prays that in the event of the location of said highway upon said premises that she be awarded damages in the sum of $3,000.00.’
(Verification omitted.)
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“II. That thereafter the said county court sitting for the transaction of county business, composed of the county judge and the two county commissioners, and having under consideration the said matter of said Alicel-Lower Cove Road, did on the 6th day of June, 1929, consider the said claim of the said Ethel M. Kerns, the damages sustained and to be sustained by the said petitioner, and after due inquiry into all the facts pertaining to said damages, duly made and entered their determination, order and judgment in the premises, as follows:
“ ‘Be it Remembered, That at a regular term of the county court of the state of Oregon, for the county of Union, sitting for the transaction of county business, begun and held at the court house in the city of La Grande, in said county and state, on Wednesday the 5th day of June, A. D. 1929, the same being the first Wednesday of said month, and the time fixed by law for holding a regular term of said court, when were present:
“ ‘The Honorable U. G. Couch, County Judge,
W. W. Stevens, Commissioner,
W. R. Ledbetter, Commissioner,
C. K. McCormick, Clerk,
Jesse Breshears, Sheriff.
“ ‘When on Thursday, the 6th day of June, A. D. 1929, or the 2nd day of said term, among others the following proceedings were had, to-wit:
“ ‘In the matter of altering, reestablishing] and changing the direction of a portion [ of the Alicel-Lower Cove Road. J
“ ‘Now at this time this matter coming on for further consideration of the report of board of county road viewers appointed to view that portion of the Alicel-Lower Cove Market Road located on the southeast quarter of section 20, township 2 south, range 40 E. W. M., in Union County, Oregon, said report having been filed on the 22nd day of March, 1929, and it appearing that Ethel M. Kerns, the owner of said described quarter section has filed a claim for damages
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in the amount of $3,000.00 in the event said road is located on said described premises, said claim being filed on the 4th day of April, 1929; and the court having considered the said report of said viewers and the claim filed by the said Ethel M. Kerns are of the opinion that said report is not equitable to all parties concerned, and that the claim filed by said Ethel M. Kerns is excessive, and the court being advised in the premises;
“ ‘It is, therefore, considered and ordered that the claim of Ethel M. Kerns be, and the same is hereby rejected, and the report of the said road viewers is hereby modified to read as follows:
‘ ‘ ‘ The county of Union will pay to the said Ethel M. Kerns the sum of $336.70 for the right of way as now located upon and over the southeast quarter of section 20, township 2 south, range 40 E. W. M.; that the said county of Union construct, if desired by said Ethel M. Kerns, a cattle pass under said road or in lieu thereof pay to her the sum of $400.00. The above two amounts are to be taken as covering the value of the property taken and all damages of every kind or nature rising out of the taking of said property.
“U. Gr. Couch, County Judge.
W. W. Stevens, Commissioner.
W. R. Ledbetter, Commissioner.’ ”
“III. That the plaintiff herein as claimant therein was duly notified of said judgment and decision of the said county court, and a warrant in the sum of $736.70 duly tendered to her and to her attorney of record; that more than 20 days have expired since said judgment and decision in said matter, and no appeal has been taken therefrom to the circuit court of the state of Oregon for Union County, or to any other court or at all; that the said proceeding in the establishing, re-establishing and changing and surfacing the said Alicel-Lower Cove Road and Highway was a re-proceeding of the same, and after the road had been actually constructed, and all acts of the county, the said construction company, or any other persons con
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nected therewith, and whatever damage, if any, to plaintiff, was at the time of the filing of her claim as aforesaid well known, determined and appreciated by the plaintiff, and the whole thereof were included in and made up her said claim for damages, and all such were duly considered, judged and adjudged by the said county court in rendering its said decision and judgment; that each and every element now making'up the total of plaintiffs claim for damages against the defendants herein as joint tort-feasors for the alleged trespass entered into, and was included in plaintiff’s said claim for damages so duly adjudicated, tried and determined in the said county court in said matter, and the same having been so tried and determined in the court and before the tribunal provided for by the constitution and laws of the state of Oregon, and not appealed from is and should be conclusive upon the plaintiff, and plaintiff should be, and is estopped from again trying out such claim or claims in this court under the pretence and guise of damages for trespass.”
The character of an affirmative defense, which, when pleaded by one defendant and not by another, will inure to the benefit of the latter, is one which goes to the merits of the whole case as tending to show no cause of action in plaintiff. 49 C. J. 209, § 243, note 30 and cases there cited.
Plaintiff urges that inasmuch as section 44-1323, Oregon Code 1930, requires the adoption of a resolution by the county court and posting notices thereof in such proceedings as those referred to in the further and separate answer above set out, and inasmuch as there is no direct allegation in said answer, either of the adoption of such resolution or the posting of the notices, the allegations of said answer are insufficient.
In support of this position, plaintiff cites
Kerns v. Union County,
123 Or. 103, 107 ( 261 P. 76 ) and
DeVall v. DeVall,
57 Or. 128, 136 ( 109 P. 755 , 110 P. 705 ).
Nally
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v. Richmond,
105 Or. 462 ( 209 P. 871 ), announces the same principle. Both the first and the last named of the three cases above mentioned were decided upon demurrer. DeV
all v. DeVall,
supra, bases its announcement of that principle upon the case of
Fishburn v. Londershausen,
50 Or. 363 ( 92 P. 1060 , 14 L. R. A. (N. S.) 1234, 15 Ann. Cas. 975), which was also decided upon demurrer to the complaint.
The omission in said answer of an allegation that the required resolution had been adopted and the prescribed notices posted is one rendering the pleading vulnerable to a general demurrer. Moreover, both the pleading and the proof disclose that the court failed to observe the statutory requirements with regard to appointing viewers and requiring them to assess damages sustained by plaintiff and as to having a hearing upon plaintiff’s petition for damages.
Among other things, section 44-1323, Oregon Code 1930, provides that in proceedings for the establishment of a county road, initiated by a resolution adopted by the county court, like proceedings shall be had by such county court as in the case of the filing of a petition before it, asldng for such improvement, except as in said section particularly specified.
This section of the statute also prescribes:
“(d) All damages shall be paid for out of the county road fund; and * * * (f) The county court shall have the power, in its discretion, to procure right of way, either by acceptance of donations, by purchase, or by agreement, or a board of road viewers may be appointed whose sole duty it shall be to determine and assess the damages, taking into consideration the benefits, of the road as located. ’ ’
Section 44-1335 of the statute (Oregon Code 1930) prescribes that if any claim for damages be filed, a
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board of county road viewers shall be appointed to appraise the damages as hereinbefore provided for, and thereafter the proceedings shall be as provided in sections 10 to 20 of this act (Session Laws of 1917), sections 44-1311 to 44-1315, 44-1317 to 44-1322, Oregon Code 1930.
Plaintiff’s claim for damages was filed with the county court of Union county, April 4, 1929. No viewers were thereafter appointed. The only report of viewers appearing in the record was one made on March 22, 1929. The order of the county court appointing the viewers, who made this report, required them to meet on March 11, 1928, and to file their report on or before March 23, 1929. It is manifest that this report could in nowise affect a claim for damages filed during the following month.
Moreover, by an order appointing them, these viewers were not required to, and did not, assess plaintiff’s damages. The language of the part of their report, pertaining to that matter, is as follows:
“* * * we recommend that a cattle pass be constructed in a location satisfactory to the owner of the land, if such is desired by said owner, however, if such cattle pass is not desired by the said owner of said land, then an amount equal to the cost of such cattle pass shall be paid said owner as damages, and a road should be constructed from the County Road to the residence of said owner free of charge equal in construction to other roads that have been constructed to residences in that vicinity. Inasmuch as the owner of the land has contributed to the construction of a road from the present county road to her private residence to the extent of the sum of $252.20, we hereby recommend that such sum be refunded. ’ ’
Section 44-1313, Oregon Code 1930, prescribes that said board shall assess and determine how much less
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valuable tbe premises through which the said road is located, or is to be located, are and set forth the same in their report. As stated, this was not done.
Section 44-1318, ibid, prescribes that if a petition for damages be filed, the court shall, on the day following the second reading of the report of the county road viewers, proceed to consider said petition, and for such purpose may from time to time, by an order entered in its journal, continue its hearing to a day certain, but in no event shall said hearing be postponed longer than two consecutive terms.
It is plain that the statute provides that the county court shall either appoint the viewers, whose sole duty it is to determine and assess the damages in establishing or changing the road, or shall have a hearing and take some testimony upon which to base its judgment. The record does not disclose that any testimony was taken.
The record does not contain a sufficient basis for a judgment of the county court in assessing the damages. The finding of the county court does not rise to the dignity of a judgment. The presentation of the petition of plaintiff for damages amounted to no more than an offer on her part to accept the amount named therein as damages. This offer was not accepted by the county court, and, hence, the record discloses only an unaccepted offer of settlement.
The defense based upon this offer is not a complete defense and is not of the character which when pleaded by one defendant and not another will enure to the benefit of the latter.
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If it appear that there was no real trial, no real proceeding and consequently no real judgment, the purported judgment may be treated as a nullity.
Conklin v. LaDow,
33 Or. 354, 365 ( 54 P. 218 , 222).
In proceedings like those in question it is not only necessary for a party to have notice but there must be some kind of a hearing and determination upon the question which is presented. In the instant case, the county court confined its consideration to the claim filed by plaintiff and to a report of the viewers wherein no assessment of damages was made. Such a course is more than a mere irregularity; it is fatal to the validity of the judgment attempted to be rendered.
Plaintiff and appealing defendant have been litigating over the road in question since June 27, 1927. It would indeed be anomalous if defendant, through its county court, could finally determine the amount to which plaintiff is entitled as damages herein without observing the mandates of the statute pertaining to such matters.
In the original opinion, the writer erroneously stated that the record of the proceedings in the county court was not received in evidence in the case at bar. The fact is that the record of a former proceeding was not admitted in evidence, but the record of the proceedings under discussion was received in evidence.
With respect to that record, the jury were instructed as follows:
“I instruct you that such proceedings would not in any event be a complete defense to any damage, if any, suffered by plaintiff prior to the time such proceedings were commenced.”
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At a later point in the court’s instructions, this statement was made:
“In other words, it would only be for damages inflicted after the county acquired title to such highway that such proceedings would be a defense and the title would not be acquired by the county until such proceedings were completed.”
The action of the trial court in receiving the record of said last mentioned proceedings in evidence and in giving the instructions quoted was error, but it was favorable to defendant and defendant cannot complain.
We believe that the former opinion was correct and should be adhered to. It is so ordered.
Campbell and Rossman, JJ., not participating in this decision.