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”
How later courts described this case
- 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”
- concurring and dissenting opinions on rehearing, representing the views of five members of the court on this question
- in the context of a court’s exercise of “equitable jurisdiction,” explaining that “ ‘a dis- tinction 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 juris- diction is lacking’ ” (quoting Hudson v. Goldberg, 123 Or 339, 342 , 262 P 223 (1927) (further citation omitted))
Written by the judges who cited it.
Distinguished
Distinguished by Memmott v. State Industrial Accident Commission, 235 Or. 360 (1963)
The Thompson case is distinguishable, however, for there the injured workman was employed a substantial part of his time as a logger, and the remainder of his time as a farm hand.
The opinion
MaALLISTER, C. J.,
specially concurring.
I concur in the result of the majority opinion, but wish to limit the grounds of my concurrence.
In my opinion this declaratory judgment proceeding was legal in nature, and the defendant Thompson was entitled to a resolution of the questions of fact as in an action at law. In this respect I agree with the dissenting opinion and the authorities cited therein. The majority opinion seems to equivocate as to the nature of the proceeding and expresses doubt that it is legal in nature. In that regard I disagree with the majority opinion.
I do agree that Thompson’s conduct in treating the case in the trial court as an equitable proceeding, in failing to assert in the trial court his right to have the case treated as an action at law, and his acquiescence in the ruling of the trial court that the case was equitable, preclude him from now asserting that the questions of fact should have been decided as in an action at law.
I believe the questions of fact were properly re *200 examined and decided in onr original opinion. I, therefore, concur in the result of the majority opinion.
Goodwin, J., concurs in this opinion.