# Oregon Farm Bureau v. Thompson

> Oregon Supreme Court · July 31, 1963 · 235 Or. 162

URL: https://www.frixlaw.com/law-library/cases/9533106

## Case

- **Full name:** OREGON FARM BUREAU v. THOMPSON Et Al
- **Court:** Oregon Supreme Court
- **Decided:** July 31, 1963
- **Citations:** 235 Or. 162; 384 P.2d 182; 378 P.2d 563
- **Precedential status:** Published
- **Opinion:** On rehearing by Rossman
- **Judges:** Maallister, McAllister, Rossman, Sloan, Goodwin, Lusk, Perry, O'Connell, Gtoodwin, Denecke
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9533106

## How later opinions describe it (automated extraction)

- explaining that “a party, through failure to make timely protest, may waive his objection to the lack of jurisdiction of a court of equity over the subject matter if the court’s jurisdiction is defective in some degree but not wholly lacking”

## Opinion text

ON REHEARING
*177 Duane Vergeer, Portland, argued the cause for appellant. On the brief were Vergeer & Samuels and Charles S. Crookham, Portland.
Kenneth E. Roberts, Portland, argued the cause for respondent Thompson. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, and David B. Williamson, St. Helens.
Before McAllister, Chief Justice, and Rossman, Perry, Sloan, O’Connell, Gtoodwin and Denecke, Justices.
ROSSMAN, J.
The petition for a rehearing sumbits the following as its challenge to our decision:
“In support of the within petition defendant submits that this Court, in rendering its decision has erred in the following particulars:
“1. The Court exceeded constitutional and statutory limitations upon its right to re-examine Findings of Fact on the appeal of proceedings in the nature of an action at law, when it held contrary to the findings of the trial Judge, that an employee of defendant Thompson was not a farm employee engaged as such or in activities incidental to the operation of a farm at the time he was injured.
“2. The Court sustained the second assignment of error, overruling an award of attorney’s fees to defendant-Thompson, upon an erroneous and unwarranted determination of fact on appeal.”
*178 ORS 28.090, which is a part of our Declaratory Judgments Act, states:
“When a proceeding under this chapter involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other actions at law or suits in equity in the court in which the proceeding is pending.”
ORS 17.440, in specifying the procedure upon appeal in equity cases, provides:
“* * * on appeal to the Supreme Court the cause shall be tried anew without reference to such findings.”
The Uniform Declaratory Judgments Act, written by the Commissioners on Uniform State Laws, and of which the Oregon act is largely a counterpart, does not prescribe in phraseology similar to ORS 28.090 the manner of trial. Its language is:
“When a proceeding under this Act involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.”
The alteration to the language of the Uniform Act which was made by the Oregon Legislature seems to emphasize that whether the cause receives trial by a jury or the chancellor is dependent upon whether it is a law or an equity proceeding.
Webb v. Clatsop Co. School District No. 3, 188 Or 324 , 215 P2d 368 , declares :
“Counsel for plaintiffs contends that, under the declaratory judgments law, plaintiffs ‘have a choice between impanelling a jury’ and ‘allowing the trial judge to decide the question of fact.’ In this, *179 counsel is surely in error. The appropriate section of the statute reads: * * *”
At that point OES 28.090, supra, was quoted.
The foregoing appears to answer the contention of the petition for a rehearing that we misapplied “constitutional and statutory limitations” upon this court’s “right to re-examine Findings of Fact on the appeal of proceedings in the nature of an action at law.”
In our previous decision we construed this cause, as the trial judge had, as governed by equity procedure. The complaint prayed for equitable relief. Thompson’s answer did likewise. The final instrument which terminated the case and which was prepared by counsel for defendant Thompson was entitled “Decree.” At the close of the plaintiff’s case in chief, the trial judge, in unmistakable language, announced that he deemed that the cause was governed by equity rules. No objection was made by any one to that interpretation of the nature of the case. The defendant Thompson at no time asked for a jury trial of any issue or that the case be tried as one at law.
Notwithstanding the foregoing, we believe that the real contention of the petition for a rehearing is that we should now deem that the parties sought relief only of a law character and that, therefore, the instrument which Thompson’s counsel prepared and entitled “Decree” was in truth a Judgment. If such was its nature and if this case was not subject to equity procedure, the findings were binding upon us and the excerpt which we quoted from OES 17.440 has no application to this cause.
It will be necessary, in resolving the issue just *180 mentioned, to turn again to the pleadings and the evidence.
This ease was instituted by the plaintiff, an insurance company, as one for declaratory relief. The defendant Thompson had only one employee, the defendant Kellar. Since the latter’s status as a defendant in this case is unimportant, we will hereafter refer to Thompson as the defendant. As stated in our previous opinion, the plaintiff had issued a policy of liability insurance to the defendant as the insured. The plaintiff claims that the policy protected the defendant only in his farming operations.
Some time after the policy was issued, Kellar was injured while in the defendant’s employ. He sought compensation from the Industrial Accident Commission upon a contention that his injury befell him while he was working as a logger. Since farming is a nonhazardous occupation, Kellar could obtain no compensation if he was injured while performing farm labor. The Commission, after a hearing, ruled that Kellar was injured while working for Thompson as a logger and awarded him compensation. Still later, Kellar filed an action for damages against this defendant (Thompson) in which he alleged that his injury was due to Thompson’s negligence. At that point Thompson demanded that the plaintiff (insurance company) defend him against Kellar’s claim. As we have seen, the plaintiff claims that the policy which it issued to Thompson requires it to defend Thompson only against claims that arose out of his farming operations. "When Thompson made his demand that the plaintiff defend him against Kellar’s action, the plaintiff filed this proceeding for declaratory relief. After setting forth the' contentions of the parties which showed that a *181 controversy existed between them, it prayed for a decree declaring that (1) the plaintiff was required to defend Thompson only against claims that arose out of farming work; (2) Kellar was injured while performing logging work; (3) the award which the Industrial Accident Commission made to Kellar established that he sustained his injury while performing logging work; and (4) such other and further relief as appropriate be awarded plaintiff.
When Thompson was confronted with the complaint, he did not challenge the jurisdiction of a court of equity over the cause by filing a demurrer of the kind authorized by OKS 16.260 (1). He filed an answer which included the following:
* * Kellar thereafter made application for the benefits of the Workmen’s Compensation Law of the State of Oregon, and that a hearing officer took evidence on said application on March 28, 1961, and found that the defendant Kellar was entitled to said benefits which were thereafter paid to him on his behalf, and admits that this defendant claims a right or interest in the policy of insurance * * * yy
Continuing, Thompson’s answer submitted “an affirmative defense” which alleged that the plaintiff had issued to him not only the policy of insurance mentioned in the complaint but also another policy which agreed to protect him from any claims arising out of the operation of “a certain International two-ton truck, including the loading and unloading thereof.” It alleged that Kellar “was either a farm employee of this defendant or was engaged with this defendant” in a joint venture for their mutual profit and gain. Then Thompson’s answer averred:
“This defendant contends that if the relation *182 ship between the defendant Kellar and this defendant at the time of said accident was that of farm employee and employer, then the insurance policy attached to and made a part of the plaintiff’s complaint is applicable and covers this defendant for the claim being asserted by the defendant Kellar against this defendant in the action referred to in paragraph IV of plaintiff’s complaint. If the defendant Kellar was not a farm employee of this defendant at the time of said injury, but was engaged in a joint venture with this defendant at said time and place, then the said liability policy issued by the plaintiff covering said truck would be applicable and would protect and insure this defendant against the claim asserted by defendant Kellar against this defendant in said action.”
The prayer of Thompson’s Answer reads:
“Wherefore, this defendant prays for a decree of this court adjudicating as follows:
“1. That at the time and place of the accident involved herein, the defendant Kellar was either a farm employee of this defendant, or was engaged with this defendant in a joint venture for their mutual profit and gain ;
“2. That either policy No. T-2950-70, which is a part of plaintiff’s complaint, insures this defendant for the claim of the said defendant Kellar, or plaintiff’s insurance policy T-295011, covering the truck above referred to, protects and insures this defendant for the claim of the defendant Kellar;
“3. For such other and further relief as to the Court may seem mete and equitable.”
The reply filed by the plaintiff admitted that Kellar was an employee of Thompson, but denied that he was “a farm employee engaged in farm employment or engaged in a joint venture for the mutual *183 profit and gain of the defendants.” The reply also alleged:
“* * * the said policy of insurance insuring the truck previously described herein contains the following exclusion:
“‘This policy does not apply;.....(e) Under bodily injury and medical payments coverages
(1) to bodily injury to any employee of the insured while engaged in the employment of the insured;
(2) to any obligation for which the insured or any company as his insurer may be held liable under any workmans’ compensation, unemployment compensation or disability benefits law, or under any similar law.’ ”
It is seen from the foregoing that the plaintiff (insurance company) conceded that the policy of insurance which the complaint describes imposed upon it the duty to defend Thompson if Kellar sustained his injury while working as a farm employee for Thompson, but denied that Kellar was working as a farm employee at the time of his injury. It alleged that he was worldng as a logger and that the policy did not require it to defend Thompson upon claims arising out of injuries sustained in logging work. Thompson’s answer agreed that it was the plaintiff’s duty to defend him upon claims from injuries received by employees who were performing farm work. Thompson seemingly was unwilling to take a stand upon the issue as to whether Kellar was a farm employee or a logger. His answer never uses the word “logger” in referring to Kellar. In mentioning him at the time of his injury, it says: “At said time the defendant Kellar was either a farm employee of this *184 defendant or was engaged with this defendant in a joint venture for their mutual profit and gain.” Thompson’s answer made no direct averment that Kellar was injured while doing farm work. The nearest he came to anything of that character was to allege, “defendant Kellar was either a farm employee of this defendant or was engaged with this defendant in a joint venture for their mutual profit and gain.” Thompson offered no explanation for his resort to alternative pleading. He worked day by day alongside of Kellar and was so engaged at the moment when the injury occurred. In fact, it was his application of power to the mechanical equipment that was hauling the logs to the truck that caused the log to flip over and injure Kellar. If Thompson did not know whether Kellar was a farm employee or a joint venturer, it is impossible to understand how the trial judge could discover what the situation was. Kornbrodt v. Equitable Trust Co., 137 Or 386 , 2 P2d 236 , 3 P2d 127 , quoted approvingly the following:
“Such pleading is bad under any system of practice when it states material facts in the alternative, so that it is impossible to determine upon which of several equally substantive averments the pleader relies for the maintenance of his action or defense.”
However, in Turney v. Southern Pacific Co., 44 Or 280 , 75 P 144 , 76 P 1080 , where the pleader could not know which of the alternatives was the truth, but his adversary had the' facts, alternative pleading was permitted.
Since no issue is presented concerning Thompson’s resort to alternative allegations, we will attach no importance to it. However, it is difficult to understand how Thompson, upon filing his petition for a *185 rehearing, conld be confident that Kellar was injured while performing farming work and yet not know, when he filed his answer, whether Kellar sustained his injury while performing logging or farming work.
Thompson does not claim that the policy which the complaint describes protected him if Kellar and he were engaged in a joint venture, but indicates that the truck policy (described in the answer) afforded him protection in such a situation. We have read it and have found no provision of that character. Thompson’s brief cites none.
Thompson presented evidence which in one of its phases tended to show that Kellar was a farm laborer, and in another of its phases showed that he and Kellar were engaged in logging operations. He brought to the trial and secured the reception into evidence of bookkeeping records which he contended established that he and Kellar were joint venturers. As our original opinion shows, those records indicate — when we add to the sum which Thompson paid Kellar for farm labor other amounts which he paid Kellar for “chores” — a total of only 16.7 per cent of the gross that Kellar received. He received 83.3 per cent for logging work. At the moment of Kellar’s injury he was in the presence of power driven logging equipment consisting of such items as a crane, cable, drum and a power driven loader. That equipment was hauling a log onto a logging truck. Thompson claims that he intended to take the log (he called it a tree top) to his home for use as firewood. According to him, the stick was about 14 feet long, 9 inches in diameter on its big end and about 6 inches on the small end. Kellar described it as larger and swore that it would be delivered to the same mill which had purchased other logs produced upon the place. The place in *186 question was a fraction of a timbered area hundreds of acres in extent which Thompson owned. He and Kellar had, in the preceding days, cut the timber from one and one-half acres of it. Thompson testified that he was terminating logging operations upon the place and that it was his duty to remove the inflamable debris which resulted from the logging. If the log that was being hauled to the truck was, in fact, a log, as Kellar insisted, the conclusion is inevitable that at the time of his injury Kellar was engaged in logging work. But, if it was a tree top, then the only appropriate conclusion that can be drawn is that Thompson was performing his duty as exacted by statute and was removing the inflamable debris. The place to which he took the debris, if such was its nature, would not render its removal farming work.
Kellar gave the following testimony:
“Q Was there any farming being done in the particular area where this logging operation— where you were hurt — where this took place?
“A No.”
There is no evidence to the contrary. Thompson had styled himself in such important documents as his Federal Income Tax Beturn as a logger. As a witness he described himself as a tree farmer.
It will be recalled that Kellar received from the Industrial Accident Commission an award of compensation upon a contention that he worked for Thompson as a logger. The plaintiff viewed the award as res judicata of the issue. Thompson seemingly contended that the court should have ruled that any damages which Kellar might recover in his action against him (Thompson) should be offset by the amount of compensation which the Commission had paid Kellar, or *187 that Kellar’s receipt of compensation prevented him from maintaining the damage action.
Thompson presented numerous receipts signed by Kellar and checks signed by himself, each of which stated that the sum was for “my share of logs.” He nowhere testified that he paid Kellar any wages. He seemed very anxious to make it appear that Kellar was his partner. Upon one cheek that he gave to Kellar he wrote, “This check is a loan to my partner in our partnership, to help keep groceries in home.” Kellar protested that he was not a partner and that he never received anything as a partner. The words “my share of logs” were written upon the papers by Thompson or his wife who helped him with his records. Thompson presented no paper bearing Kellar’s signature which indicated that Kellar had received any wages for farming work. The phrase “my share of logs,” according to Thompson, supported his contention that he and Kellar were engaged in a joint logging venture. He claimed that in addition to himself and Kellar, one of his brothers and a cousin were members of the venture. The Industrial Accident Commission, after the hearing which it conducted and in thé course of which Thompson testified, ruled that Kellar suffered his injury while working as a logger and that he was entitled to compensation.
Kellar testified that he and Thompson had felled trees in the area and that at the time of injury there was a full “load of large logs left.” Immediately prior to his injury he had been engaged in building for Thompson a short stretch of fence for which he was paid one dollar an hour. Then Thompson came for him with the logging truck and asked him to load the truck with the logs just mentioned. Regular power driven machinery, commonly employed by loggers in *188 loading logs upon trucks, was used in loading the truck.
No one denies that a court of equity had jurisdiction or power to construe these two policies of insurance. The' construction of instruments occurs daily in courts of that character and, according to B orchard, Declaratory Judgments, page 240, courts of equity are well adapted for rendering service of that nature. In the present instance, both the plaintiff and Thompson prayed the court of equity to construe the policy mentioned in the complaint. In addition, the defendant’s answer prayed for a construction of the policy (truck) which it alleged.
It is well established by the decisions of this court and the holdings elsewhere that a party, through failure to make timely protest, may waive his objection to the lack of jurisdiction of a court of equity over the subject matter if the court’s jurisdiction is defective in some dngree but not wholly lacking.
We quote the following from 21 CJS, Courts, § 109, page 165:
“Objections to lack of jurisdiction of the person, and other objections to jurisdiction not based on the contention that there is an absolute want of jurisdiction of the subject matter, are waived by invoking the court’s jurisdiction, as by a cross bill or counterclaim, consent, or voluntary submission, to jurisdiction, or conduct amounting to a general appearance, or objecting to the jurisdiction of the subject matter, failing to raise the question of jurisdiction in the proper manner, seeking relief on a ground additional to, or other than, want of jurisdiction, appealing, or by any other conduct indicating an intention to abandon or forego the objection.”
It will be recalled that Thompson’s answer alleged *189 the policy of truck insurance, prayed for its construction and for general equitable relief.
The following is taken from United States National Bank of Portland v. Erickson and Terteling & Sons, 208 Or 141 , 800 P2d 449 :
“Objections relating to whether the cause is triable at law or in equity should be made in the trial court, and, unless the issues raised are wholly beyond the jurisdiction of a court of law or equity, the unchallenged ruling of the trial court determining upon which side of the court the matter lies, acquiesced in by the parties, will not be reviewed on appeal. Flaherty v. Bookhultz, 207 Or 462 , 297 P2d 856 ; Ward v. Town Tavern et al., 191 Or 1 , 228 P2d 216 , 42 ALR (2) 662; United Brokers Co. v. Dose, 143 Or 283 , 22 P2d 204 ; Topolas v. Skotheim et al., 126 Or 683 , 250 P 235 , 270 P 753 .”
It will presently appear that the trial judge made an unchallenged ruling that this cause was equitable and that Thompson acquiesced in the ruling.
United Brokers Co. v. Dose, 143 Or 283 , 22 P2d 204 , holds:
“There is some controversy as to whether this is an action at law or a suit in equity but, in view of the fact that no objection was made to the forum in which the case was tried, we pass the same without further comment.”
In Topolos v. Skotheim, 126 Or 683 , 250 P 235 , 270 P 753 , Mr. Justice McBride stated:
“* * * It does not follow that the court in administering equity is precluded under proper circumstances from rendering a money judgment. Nor does it follow in every case that a court will refuse relief because there seems to be no other way of reparation except by rendering a money judgment, and this is especially the ease since the passage of Section 390, Or. L., which provides:
“ ‘No case shall be dismissed for having been *190 brought on the wrong side of the court. The plaintiff shall have a right to amend his pleadings to obviate any objection on that account.’
“In the case at bar there was no demurrer to the complaint and no plea of the jurisdiction of the court in any shape. The case was tried until all the testimony was in as though the pleadings had been absolutely perfect, but at the end of the testimony a motion was made to dismiss for want of jurisdiction in equity.
“There was no application to compel plaintiff to amend his pleadings, but only a request that the court should do exactly what the statute says the court shall do, namely, to dismiss the case, although defendants were undoubtedly aware, and could not have been unaware, of the fact of their reconveyance of the hotel lease to another party, and whether or not such conveyance was anything but colorable. They knew the inside facts of the transaction much better than this ignorant Greek whom they were defrauding, and were in a position to have taken advantage by answer in the first place if they had desired to do so, or by demanding a jury after the facts had been fully disclosed in the evidence. We are not disposed to consider this technical objection with any degree of patience.
Lewis v. Shook and Lee, 185 Or 67 , 201 P2d 908 , states:
“Lee, by his brief in this court, raises these questions as against Shook: (1) There is no fact alleged by the pleadings upon which damages for fraud may be allowed; (2) as to such damages, Lee is entitled to trial by jury; (3) procedure under the declaratory judgments statute may not be used for what is in effect an ordinary damage action, especially one based on fraud. In view of our disposition of the case, we find it unnecessary to discuss any of these questions, except for (3). As to that, the elimination of Lewis from the case con *191 verts the issues, as between Shook and Lee, into what amounts to a suit for specific performance by Lee, with a counter-claim by Shook that he is entitled to damages, to be applied in reduction of the purchase price, in respect of Lee’s alleged fraudulent representations. In praying for a decree of specific performance, Lee submitted to the equitable jurisdiction of the court, and cannot now urge the jurisdictional question. Oldenburg v. Claggett, 142 Or 238, 241 , 20 P.2d 234 ; Bottemiller v. Ball, 130 Or. 255, 262 , 279 P. 542 , 69 A.L.R. 951 ; Jensen v. Probert, 174 Or 143, 158 , 148 P.2d 248 ; Mogul Transportation Co. v. Larison, 181 Or. 252, 259 , 181 P.2d 139 .”
Flaherty v. Bookhultz, 207 Or 462 , 291 P2d 221 , 297 P2d 856 , ruled:
“* * * It is true that plaintiff might have proceeded at law by an action for money had and received, and in such action could have had an accounting and a discovery, but in the absence of a demurrer or other objection by defendants to the jurisdiction of equity on the ground that plaintiff had a plain, speedy, and adequate remedy at law, defendants must be deemed to have waived their objections to equitable jurisdiction. However, we do not wish to be understood as saying that parties may confer jurisdiction in equity upon agreement between themselves, either expressly or impliedly. That is not the situation in this case. We note in passing that on the original hearing in this court neither party, in his brief or on oral argument, advanced the theory that equity did not have jurisdiction in this matter. * * *”
If a court of equity was wholly lacking in jurisdiction over this cause, and we do not believe that such was the case, that fact was apparent upon the face of the complaint, and was as manifest to Thompson when he was served with the complaint as it was *192 when he wrote his petition for a rehearing. OES 16.260 provides:
“The defendant may demur to the complaint within the time required by law to appear and answer, when it appears upon the face thereof:
“(1) That the court has no jurisdiction of * * * the subject of the action; * * *”
Thompson did not challenge the jurisdiction of the court of equity over this cause by demurrer or in any other manner. The complaint alleged fully the controversy and made it clear that the relief which the plaintiff sought was a decree. The court of equity’s jurisdiction could have been challenged by demurrer.
Hudson v. Goldberg, 123 Or 339 , 262 P 223 , states:
“It is settled law in this state that an objection to the jurisdiction in equity in the absence of a demurrer on the ground that plaintiff has a plain, adequate and complete remedy at law comes too late, after the defendant has by his answer put himself upon the merits, where the pleadings suggest no such defense: Kitcherside v. Myers, 10 Or 21 ; State v. Blize, 37 Or 404 ( 61 Pac 735 ); O’Hara v. Parker, 27 Or 156 ( 39 Pac 1004 ); Bowsman v. Anderson, 62 Or 431 ( 123 Pac 1092 , 125 Pac 270 ); Nicholas v. Title & Trust Co., 79 Or 226 ( 154 Pac 391 , Ann Cas 1917 A, 1149). In Bowsman v. Anderson, supra, an exception to the rule just stated was recognized, wherein this court said:
“ * * But a distinction must be made between an entire lack of matter of equitable cognizance and cases within the field of equitable jurisdiction, in which an element essential to complete jurisdiction is lacking. In the former, the objection is not waived by failure to interpose it at the proper time, but it is available at any stage of the proceeding; while in the latter, if the objection is not seasonably interposed, it will be deemed to be *193 waived. In such a case, the subject of the controversy is equitable, and the relief sought such as equity alone can grant. This distinction is well stated in 16 Cyc., pp. 127,128, where the authorities are collated. If the case is within the general field of equitable jurisdiction, the absence of any condition which might defeat the jurisdiction, if seasonably raised, may be waived, provided it is competent for the court to grant the relief sought, and it has jurisdiction -of the subject matter. The application of the doctrine of waiver in equity cases is practically restricted to cases of concurrent jurisdiction.’ ”
See to like effect Barnes v. Eastern and Western Lumber Co., 205 Or 553 , 287 P2d 929 , at page 612.
In Topolos v. Skotheim, 126 Or 683 , 250 P 235 , this court, in sustaining the jurisdiction of the court of equity, stated:
“In the case at bar there was no demurrer to the complaint and no plea of the jurisdiction of the court in any shape.”
Flaherty v. Bookhultz, 207 Or 462 , 291 P2d 221 , 297 P2d 856 , states:
“* * * but in the absence of a demurrer or other objection by defendants to the jurisdiction of equity on the ground the plaintiff had a plain, speedy, and adequate remedy at law, defendants must be deemed to have waived their objections to equitable jurisdiction. * * *”
The rule stated in the foregoing decisions is in harmony with the rule established in virtually all jurisdictions that employ code pleading. See Phillips Code Pleading, §§291, 292; 41 Am Jur, Pleading, §213, page 443; and 71 C JS, § 237.
It is manifest that the controversy between the *194 plaintiff and Thompson, and the relief for which each of them prayed, was not completely outside of the jurisdiction of a court of equity. To the contrary, the relief which they sought was within the scope of equity’s powers. By not challenging the jurisdiction of the equity court by demurrer, Thompson must be held to have waived that contention.
.Not only must we deem that Thompson waived the lack of the court’s jurisdiction (if it in fact lacked jurisdiction), but we must also hold that he tried the ease as one in equity and himself invoked equity practice. For example, upon at least two occasions evidence which was ruled inadmissible was nevertheless received under the practice known as “under the rule.” The brief filed in this court by the defendant respondent Thompson makes this statement: “Evidence of the foregoing was introduced into evidence ■under the rule’ by way of the transcript of the testimony taken before the hearing officer of SIAC.” The brief continues:
“It is not denied by Thompson that Kellar did in fact make application to SIAC for benefits; that Kellar appeared before a hearing officer for SIAC # # *
Still another part of Thompson’s brief states:
“Thompson’s co-counsel, David D. Williamson of St. Helens, Oregon, was called as a witness by defendant Thompson and he was permitted to testify ‘under the rule’ that no assessment pursuant to OBS 656.054 had been made against the defendant Thompson and that no completed audit of his records had been made by SIAC and further that SIAC had indicated to Mr. Williamson that an audit would not be continued or completed until after December 1, 1961, pending the outcome of ‘this' litigation.’ ”
*195 In the brief which Thompson filed in support of his Petition, for a Rehearing he took our decision to task because we did not give effect to testimony which the trial judge had excluded but which got into the record “under the rule”; There he says, “this Court apparently overlooked or disregarded the testimony of Mr. Thompson at the hearing before the State Industrial Accident Commission.”
Prom the foregoing we see that in the circuit court, in this court and upon Petition for Rehearing Thompson treated the case as governed by equity practice.
Further showing that the case was tried in the circuit court under equity practice is the incident which we will now mention. After the plaintiff (insurance company) had concluded the presentation of its evidence in chief and had rested, counsel for Thompson moved “the court to enter a decree on the basis of the plaintiff’s own evidence and testimony that the Dean Kellar accident was, first of all, covered by the Farmers General Liability policy, or, in the alternative, by the automobile policy on the truck * * *. Without in any way waiving my motion for a decree and findings in favor of the defendant Thompson in this regard, I at this time move the Court to strike from” the complaint one by one some of its averments.
The motion brought an objection that equity practice did not countenance a motion of that character at that stage of the trial. Presently, the trial judge ruled:
“I think we would save time if I would announce that this is a proceeding in equity and that in my opinion the motion which you have made does not lie. Now in equity, at the close of the plaintiff’s case, the only relief that can be granted to a defendant is a motion to dismiss; but while this *196 is a suit in equity, we are proceeding under a special remedy known as Declaratory Judgment and the Court has the responsibility, as I understand it, to declare something, either in favor of what the plaintiff is asking for or against it. The Court has to end up making some kind of a declaration of rights, and that’s particularly true in this case because regardless of what may or may not have been proven at this point, at least there has been evidence proved which invests the Court with jurisdiction of the parties and of this dispute, in my judgment, for a motion to dismiss to apply.”
At that point counsel for defendant Thompson made no objection whatever to the trial judge’s interpretation of the nature of the case and the practice which governed it. To the contrary, he acquiesced in it by changing his motion. Then came this ruling:
“Very well. Then I will also announce that I would deny your several motions for relief, as to the allegations in the pleadings. I see no useful purpose served in an equity ease for doing that. # * #»
The instrument which terminated this proceeding and from which the appeal is taken was prepared by Thompson’s counsel and was labeled “Decree.” We have also seen that upon appeal Thompson asked this court to employ equity practice and deem that evidence which was received in the circuit court “under the rule” is actually before us. Moreover, the disclosure that Thompson had neglected to remit to the Industrial Accident Commission and that Kellar was receiving compensation from that source rendered it the duty of the court of equity to decree a lien in the commission’s favor upon Kellar’s cause of action against Thompson. Both parties asked the court of equity for judicial service which it had the power to render. No *197 objection was made to the course delineated by the trial judge, as to the practice he was employing. He ruled that the cause was triable under equity procedure.
In taking our position we do not depart from the rule that parties cannot confer jurisdiction upon a court by stipulation. But if a party remained silent when he should have spoken, he may thereby become estopped from questioning jurisdiction unless the subject lies wholly beyond the court’s jurisdiction. Any other rule would enable a party — wittingly or unwittingly — to mislead the trial judge when he makes a ruling as to jurisdiction and procedure and likewise to mislead this court when it later studies the record. In the present instance the trial judge’s ruling was, as we have seen, crucial. When the trial judge made the quoted ruling and when this court read the transcript each was warranted in believing that Thompson concurred in it. An inference to that effect was fortified by the attitude he displayed at other times which we have mentiond, as, for example, when he labeled the jural instrument which terminated the case a “Decree.” So far as this court is concerned, it was further confirmed when Thompson treated as evidence properly before us testimony that the trial judge had rejected but which came into the record “under the rule.” Parties must be frank and timely disclose their position. They must voice exception to a ruling with which they do not agree, or, in the absence of something which justifies silence, be deemed as acquiescing. We should have the right to infer from the action of the defendant that he deems a cause equitable in nature if:
1. He does not challenge the jurisdiction of the court by demurrer although the complaint is *198 phrased upon the premise that it is equitable in nature;
2. He prays in his answer for (a) a construction of a writing which the answer quotes, (b) a “decree,” and (c) such other and further relief as the court may deem mete and equitable;
3. He employed in the trial court procedure that only a court of equity affords;
4 He heard the trial judge, as the basis for his decision, make in unmistakable language a ruling that the ease is equitable without in any manner questioning the ruling or denoting lack of acquiescence in it.
5. Upon hearing a ruling that the case was equitable, he thereupon modified a pending motion;
6. In preparing the final jural instrument which terminated the case, he labeled it “Decree”;
7. Upon writing his brief for this court he proceeded in accordance with equitable practice and treated as admitted evidence which the circuit court had received only “under the rule”;
8. Upon his petition for rehearing, he treated the ease as equitable;
9. The case was not foreign to a court of equity’s powers; and
10. No relief was given that lay beyond the powers of a court of equity.
If it could be said that no one of those component parts could in itself suffice to show that the party, who thus conducted himself, treated the case as equitable, it must be borne in mind that in this case Thompson embraced all of those component parts and did so throughout the case.
We have no thought of encouraging insurance companies to resort to declaratory judgment proceedings as a means of bypassing trial by jury. But those who wish trial by jury must not sit mute in the trial *199 court and keep their thoughts to themselves. They should not postpone their demands until they reach this court. We abide by the rule expressed in United States National Bank v. Erickson and Terteling S Sons, supra, and in the other cases which hold that if the jurisdiction of the court can be readily challenged by a demurrer, a failure to do so will be deemed a waiver unless the court was wholly lacking in jurisdiction.
We adhere to our former opinion.
Perry, J., concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9533106. Public record. Not legal advice.