The opinion
On Petition foe Reheaeing
( 8 P. (2d) 1089 )
BROWN, J.
The appellant has filed a petition for a rehearing, in which he asserts that we erred in our former opinion in holding that the cause was at issue long before the defendant filed his motion and proofs relating to the disqualification of the judge, and likewise in denying his petition for postponement of the trial. For a statement of the facts see our original opinion.
In our original opinion we called attention to section 2-103, Oregon Code 1930, wherein it is stated that—
“An issue of fact arises—
“1. Upon a material allegation in the complaint, controverted by the answer.”
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. Notwithstanding this provision of the statute, the appellant earnestly insists that this proceeding is ruled by the case of
Mulkey v. Day,
49 Or. 312 ( 89 P. 957 ), and asserts that by our holding herein we have set aside the doctrine taught in that case. In this he is in error. In the decision of the Mulkey case, it was held:
“Actions at law in Oregon cannot be ‘dismissed’ by either party or disposed of in any way except by a judgment or an order of nonsuit.” Point 1, Syl.
As to trial when issues are accomplished, it was-likewise held:
“Before a case can be said to be ready for trial under section 113, B.
&
C. Comp., which defines a trial, the case must be at issue on either law or facts as to all parties, and no trial can be demanded when some parties have answered and others have moved or demurred. ’ ’ Point 2, Syl.
The third point denies authority of a justice of the peace to grant a nonsuit for want of a pleading “within less time than is allowed by law to file such plea.” . • . •
To the holding in that case we subscribe. The question there to be determined related to the issues arising upon the pleadings with reference to the
trial
of the cause in controversy. On the other hand, the sole point to be determined in the case at bar related to the prejudice of the judge.
From 33 C. J., 817, we learn that the term “issue” has various meanings, depending on the subject matter of the writing or discourse, or upon the context,' or both, and' further, that its context should always' be considered in interpreting a given case. At page 819 the' same author says:
“The meaning of the word may be restricted. Its true interpretation must be found from the connection
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in'-which it'.-is used ■ * *. #; and,- whatevér is the prima fácie meaning of the word, it will-yield to the intention of the person-using-it.”
Among other things, the plaintiff herein alleged that the appealing defendant With his co-defendants lúréd the' pláintiff to a room in' a hotel, whereupon each of the defendants “did, in a'rude, insolent, arid angry mañnér,- üphraid' and insult the plaintiff, and did willfully, wantonly, recklessly. and' unlawfully then and there assault, beht, bruise, ’ and wound. plaintiff, by striking him with clenched fists and by seizing, twisting and manhandling him, and did with force and violence attack plaintiff as aforesaid, bruising, him about the head and face and causing him to undergo and suffer great pain and anguish, both'physical' and mental.” The defendant denied these allégatíons' and affirmatively pleaded self-defense. A reply was filed August 20,1930, putting the case at issue.
We are satisfied as to the correctness of our holding that the proof to disqualify the judge was not filed within the time prescribed by statute.
Now, as to the defendant’s contention that the court abused its discretion by denying a postponement of the trial:
In the case of
State v. Mizis,
48 Or. 165 ( 85 P. 611 , 86 P. 361 ), this court said:
“The postponement of a trial, like that of a change of venue, rests in the discretion of the trial court, and its ruling will only be reviewed for abuse:
State v. O’Neil,
13 Or. 183 ( 9 P. 284 );
State v. Hawkins,
18 Or. 476 ( 23 P. 475 );
State v. Howe,
27 Or. 138 ( 44 P. 672 );
State v. Fiester,
32 Or. 254 ( 50 P. 561 ).”
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See, also,
State v. Luper,
49 Or. 605 ( 91 P. 444 ),
Harrison v. Pacific Ry. & Nav. Co.,
72 Or. 553 ( 144 P. 91 ), and
Portland & O. C. Ry. Co. v. Sanders,
86 Or. 62 ( 167 P. 564 ).
Finally, we direct attention to 9 Cyc., pp. 161, 162, where this authority, in dealing with the subject of Continuances in Civil Cases, declares:
“In all eases the ruling of the lower court will be presumed to have been in accordance with the merits and justice of the case, unless the party complaining shows unequivocally that the court has been guilty of an abuse of discretionary powers, and that his rights have been injuriously affected by such abuse.”
In this the defendant has failed.
For the reasons stated above, the petition for rehearing will be denied.