Daily capital journal. (Salem, Oregon) 1903-1919, 1918-02-19
JUDGEMENT AGAINST
SOLDIER REVERSED
BY SUPREME court
Eastern Oregon Judge Is Re-
VerSed---0ther Decisions
Handed Down Today

AAS-4AsA0Sa SOVA AO0GAy
That the Oregon supreme court will
not permit anyone to take advantage
of soldiers in active service by bring
ing against them suits which they can
not properly defend because of their
inability to be present in court, is
shown by the opinion of the court
handed down today in the case of NJ.
R. Elliott VS. Douglas Lawson, appel
liant. The case was appealed from
Crook county and the supreme court
reversed Circuit Judge Duffy.
Lawson was a member of the nation
al guard when the soldiers were call
ed into active service for duty on the
Mexican border in 1916 He went with
his regiment, but obtained a furlough
and returned TO his home in Prineville
to look after some personal business.
While in the act of leaving to rejoin
his regiment, he was served with the
papers in suit filed against him for
$l10O. He turned the papers over to
q lawyer and proceeded to rejoin his
regiment, as he was compelled to do.
Lawson, through his attorney, asked
for postponement as he was still in
military service and had no opportuni-
tv to defend himself. Judge Duffy de-
MED the motion. for postmonement.
The plaintiff presented his evidence,
but the attorney for Lawson refused
to present any testimony. Judge Duff
fly then gave directed verdict in fav-
or of the plaintiff for the full amount.
In the supreme court S opinion, JUS
tice Bean says:
cit is the policy of the law to give
a party to an action his day in court,
or q sufficient opportunity to make
any defense claimed by him. Under
the circumstances in this case as de-
tailed by affidavit on behalf of the
defendant and in regard to which there
there 8 practically no controversy we
think the trial court in the exercise of
its discretion should have granted a
postponement of the trial. Such judi
cial discretion should be exercised ac-
cording to fixed legal principles in or
der to promote substantial justice.
"While in the military service of
his country and on that account com
PEELED to be absent from the place or
trial of case in which he is party
and at which his presence is neees-
sary for proper conduct thereof, the
defendant has one of the strongest
reasons for the continuance of the ac-
tion. It is shown that the presence OF
the defendant at the trial was abso-
lutely necessary.
"Chapter 275 of the laws of 1917
relating to and limiting suits to fore
closure mortgages and levy of exeeu-
ton upon judgments upon and against
lands of soldiers and sailors in the act
nal service of the United States dur
ing war, indicates the legislative trend
in regard to such matters.
"The Judgment of the lower court
is reversed and the cause remanded
.or such further proceedings as may
be deemed proper not inconsistent
herewith.
In the case of Mary Badurs against
Multnomah county, an original pro
ceeding for a writ of mandamus, the
supreme court refuses to grant a writ
TO require the county court of Multi
nomah to approve the petition of the
plaintiff for relief under the widow
pension law for herself and two small
children. The court holds that the
plaintiff has not made a proper show
ing to entitle her to such relief, be-
cause she did not give the required in
formation relating to her property and
income.
Other opinions were handed down to-
day as follows:
johanna York, administrator Of es-
tate of Lewis York, appellant VS. South
ern Pacific companp; appealed from
Tillamook; suit to recover damages
for death Of plaintiff s husband; opin'
ion by Justice Moore; Circuit Judge
Baglev affirmed.
Charles d. Schmid VS. n. G.. Thorsen
ct al, appellants; appealed from Mutt
nomah; action to recover rent; opin-
ion by Chief Justice Mcbride; circuit
Judge Kavanaugh affirmed
NJ. Gearin VS. Rothchild Brothers, APP
pellants; appealed from Multnomah;
suit constituting lease; opinion by Jus
tice Benson; Circuit Judge Davis af-
firmed
City of Eugene vs. Thomas H. Gar
rett ct al, appellants; appealed from
Lane; petition for rehearing denied;
opinion by Justice Bean.
Ton Toy VS. John Gong, appellant;
appealed from Marion; suit to recOv.
er for services rendered as farm hand
opinion bv Justice Harris; Circuit
Judge Kelly affirmed.