Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-19

dant, and that said three persons
] snail proceed to view said premises
and said ditch, canal or fiume, de-
termine the damages sustained by the
defendant on account of the taking of
said land and the construction OF
said canal, ditch or fiume. withou
the taking of testimony or the argu-
ment or assistance of counsel, except
as the same may be requested by said
board of arbitration, and said finding
of said board of arbitration or a ma
iOrity thereof, shall be final as to
said damages sustained by defen-
dant
And it is further agreed that the
selection of said three persons shall
be concluded by Saturday the Sth
day of June. 1907, and in case said
three persons are not chosen on or
before said last mentioned date this
agreement shall be null and void and
Of no force or effect.
And it is further agreed that an
award of said board of arbitration of
majority thereof shall be made on
or before Wednesday, the 18th day of
June, 1907, and that the same shall
be Immediately filed with the clerk of
the above entitled court, and when so
filed, it is agreed by the parties here
to that the defendant may take judg-
ment against the plaintiff for the
amount of said award, and said iudg-
ment may be entered upon the rec
ords of this cause as any other judg-
ment rendered upon the verdict of a
jury or the findings of the court, and
the same as if said cause had been
tried by the court and jury, and
shall be final and binding upon the
parties hereto as any other judgment
rendered in this cause upon all of
the matters referred to herein and in
said complaint"
That pursuant 70 the agreement of
arbitration, the Pence Company chose
one arbitrator; Barry chose the sec
ond, and these two met and chose a
third, who, after consideration, filed
in the action an award in the amount
of S9425 that since the filing of the
award the company has been dis
solved by proclamation of the COVER
nor and is wholly insolvent, and has
no assets nor property; that, upon
the death of Barry plaintiffs were
substituted as defendants in the con-
demnation proceedings.
A demurrer to this complaint was
Oyerruled, and defendant filed an an
swer, which substantially admits the
agreement of arbitration, the return
and filing of the award, and the in
solvency and dissolution of the Pence
Company, and sets up that defendant
had no knowledge or notice of the
arbitration, nor of the meeting of the
arbitrators, nor of the filing of the
award, and did not consent to such
proceedings in any way The answer
further alleges that James Barry
died on September 10, 1907; that his
heirs at law were not substituted as
defendants within one year from that
date nor have they ever been substi-
tuted; that after Barry's death an
alleged award of arbitration was filed
in the circuit court but no Judgment
was taken against the owners of the
real property, vesting the occupation
and right to possession of the prop
erty in the Pence Company.
At the time of filing the foregoing
answer, the defendant also filed in
the action cross complaint in
equity, setting up substantially the
same facts that appear in its answer
at law and claiming the privilege Of
being subrogated to any rights the
Pence Company might have in the
ditch across the land of Barry.
Plaintiff demurred to the answer in
the action at law and also to the
cross complaint in equity On the
ground that the answer did not state
facts sufficient to constitute a de-
fense and that the cross complaint
did not state facts sufficient to JUS
tify any equitable relief. Both de-
murrers were sustained. Judgment
was rendered in favor of plaintiffs
for the amount prayed for in the
complaint Defendant appeals.
Mcbride, j. The demurrer to the
defendants cross complaint was
properly sustained Every legitimate
defense therein, urged had been set
up in its answer in the law action
and the cross complaint set up no
equity. 1t asks to be subrogated to
any rights that the Pence Company
have in the land, but does not sllege
that it has any such rights and, in
fact, contends that it has not ac-
quired any.
The court erred in sustaining the
demurrer to defendants answer.
The submission beinP made in an ar