Percy R. Kelly

This case is an original mandamus proceeding in which Multnomah County residents challenged a Washington County circuit judge's denial of their motion to quash service and dismiss an equity suit seeking to enjoin a nuisance from rock quarrying on property they owned in Washington County. The relators had been served only in Multnomah County, where they resided. The court held that venue was improperly laid in Washington County under the applicable statute because the suit did not involve partition, foreclosure, or determination of interests in real property, and the defendants neither resided nor were served there. It reasoned that personal service confers jurisdiction but venue is a waivable personal privilege, so a timely motion to quash must be granted when venue is improper. The court therefore overruled the demurrer and issued a peremptory writ directing the judge to quash the service.

procedureproperty

The case concerns an appeal challenging the validity of an alimony award in a prior divorce decree, specifically whether the plaintiff could be held liable for unpaid alimony after the divorce was granted. The majority opinion addressed the availability of the full divorce record for review in such proceedings and overruled part of the earlier decision in Griffith v. Griffith. The dissent argues there is no controlling distinction from prior cases like Crumbley v. Crumbley and Griffith v. Griffith, asserting that the entire record should be accessible to determine equitable outcomes whether the challenge arises on direct appeal, from a contempt order, or from enforcement of alimony arrears. The dissent concurs in the overall result but disagrees with limiting record review. The core reasoning emphasizes fairness and consistency in examining the divorce proceedings to resolve alimony disputes.

family lawprocedure

The case involved a plaintiff who lost approximately $9,495 playing stud poker at defendants' Portland cafe, where the defendants' employees dealt cards and took a percentage of each pot from the players' chips. Plaintiff sued under Oregon statutes making such gambling a misdemeanor and granting losers a cause of action to recover double their losses from the dealer, winning player, or proprietor benefiting from the game. The trial court apparently ruled against the plaintiff, but the Supreme Court of Oregon reversed, holding that defendants qualified as proprietors who benefited directly from the games by taking a cut of the stakes. The court reasoned that the Oregon statute expressly allows recovery from such proprietors, unlike narrower laws in other states, and that the facts established the defendants' role as a matter of law, so the case must be submitted to a jury with instructions on the statutory terms. The judgment was reversed and the matter remanded for further proceedings.

criminal lawtorts & liability

This case involves a criminal appeal challenging the sufficiency of evidence identifying the defendant as the perpetrator in a prosecution for sexual intercourse with the prosecutrix. The sole question was whether the record contained substantial testimony linking the defendant to the act that occurred after he moved to the rear seat of the parked car. The court affirmed the conviction, holding that the prosecutrix's direct testimony, her statement that she had not previously had relations with any man, and the officers' accounts of the defendant's admissions created an issue of fact for the jury that was not erased by the defendant's contrary testimony.

criminal law

The case involved a dispute between James W. McIver and William Norman over a 1941 written agreement to hold title to property in Portland, Oregon, build a residence through Equitable Service Inc., and share equally in net profits or losses from its eventual sale. McIver, whose company was involved in construction, sued Norman for an accounting after Norman and his wife took title, obtained a mortgage, completed and occupied the home, and rejected further claims. The court held that the parties were joint adventurers whose fiduciary relationship continued for winding up the venture, rejecting defenses of abandonment, prior accounting, laches, and speculative delay. It reversed the trial court and remanded for an accounting, applying partnership principles that require strict accountability among coadventurers regardless of changed circumstances or delays.

business & regulatorypropertyprocedure

This case is a divorce action in which plaintiff Margie Kilborn alleged that defendant Oscar Kilborn treated her cruelly by using abusive language, making unfounded accusations of infidelity, striking her, and displaying an irritable disposition. Defendant denied the claims and counter-alleged that plaintiff neglected their children, pursued amusements, nagged him, and engaged in suspicious conduct with another man. After reviewing the testimony, which failed to substantiate defendant's charges but included corroboration of plaintiff's accounts of physical abuse, the trial court granted plaintiff a divorce, and the appellate court affirmed the decree.

family law

This case involves a personal injury lawsuit arising from an automobile collision at an intersection in Oregon, where plaintiff Katherine DiNucci sought damages after being injured as a passenger in a vehicle driven by her husband. The jury returned a verdict for defendant Chester James Hager, but the trial court set aside the verdict and granted a new trial based on errors in the jury instructions. The appellate court affirmed, holding that the instructions improperly required the plaintiff to prove the defendant's negligence was the sole proximate cause of the injuries and incorrectly suggested that the plaintiff's speed could bar recovery even if it only contributed slightly to the accident. The court noted that these errors provided a tenable ground for the trial court's decision to order a new trial, and no contributory negligence was alleged against the plaintiff.

proceduretorts & liability

This case involved a pawnbroker who challenged a county assessor's attempt to tax personal property such as clothing and jewelry that had been pledged as loan collateral and was in the pawnbroker's possession on the assessment date. The property would have been exempt from taxation if held by its owners, but the assessor added it to the pawnbroker's tax roll at a value equal to the loan amounts. The trial court overruled a demurrer and granted an injunction against the assessment and collection; on appeal the Supreme Court affirmed, holding that the relevant statutes provide only procedural mechanisms for assessment and do not eliminate the statutory exemption for that class of personal property merely because possession is temporarily transferred to a pledgee.

taxesproperty

This case involves a dispute over a 1945 lease agreement for a vacant lot in Oregon, where the lessee Pearl Austin was to construct a building for a restaurant and tavern, with rent partially crediting towards the building's cost and an option to purchase the property. The lessor P. E. Weaver sued after issues with construction and possession, including filing a forcible entry and detainer action, while the defendant counterclaimed for damages including punitive damages and lost profits. The court affirmed the lower court's ruling in favor of the plaintiff, finding that the defendant breached the contract first by failing to purchase and supply building materials, which preceded any potential breach by the plaintiff, and that claims for punitive damages lacked evidence of malice and lost profits were too speculative.

propertyprocedure

The case involved a plaintiff who was injured when his car collided with a fallen power pole on a public highway in Washington state, claiming the pole had become rotten and defective while under the defendant electric company's control. The defendant argued that the plaintiff had driven off the road and struck the pole while it was still standing. The jury credited the plaintiff's version of events, and the court applied the doctrine of res ipsa loquitur, noting the pole had been installed 14 years earlier with no evidence of inspection, to conclude that the defendant was negligent. The trial court's judgment awarding the plaintiff $20,000 in damages was affirmed on appeal.

torts & liability

This case concerns a dispute over the final account filed by the executor of Stephen Hemshorn's estate, who was one of the testator's sons and had continued operating the family farm after the 1940 death without explicit authority in the will or from the probate court. One daughter, Alphonsine Lelek, raised multiple objections, including to the executor's continuation of the business and to a $500 payment made to another heir. The probate court approved the accounts, but on appeal the court reversed, holding that the payment was unauthorized and that the final decree must affirmatively determine the executor's compensation for both estate administration and farm management, as well as the exact distributive shares of each beneficiary under the residuary clause. The decision rests on statutory requirements that the probate court, rather than the executor, must direct the payment of claims, legacies, and the final distribution of assets.

family lawpropertyprocedure

This case involved a dispute over a 1946 farm lease agreement between plaintiff Balla and defendant Ireland that included a crop-sharing arrangement (one-third to the lessor) for onions and an option for the lessee to purchase the 46.2-acre property for $12,100. The plaintiff took possession, notified the defendant of exercising the option in July 1946 with a tender of the purchase price, but the defendant refused to convey title, leading to a suit for specific performance. The trial court granted relief to the plaintiff, but the Oregon Supreme Court reversed and remanded, holding that the complaint failed to allege essential elements such as the plaintiff's performance of contract terms, any modification of the lease, or waiver, while the answer omitted any claim of anticipatory breach by the plaintiff regarding the crop share. The court reasoned that these issues required proper pleading to allow adjudication of the parties' rights under the lease and option provisions.

propertyprocedure

In State v. Wood, the defendant, who had a 1925 burglary conviction, was arrested in Baker County in 1947 while possessing a concealed revolver and was charged with the felony of a convicted felon possessing a firearm. The trial court overruled his challenges to the indictment, rejected his plea of former conviction, and entered a judgment of conviction after trial. The Oregon Supreme Court affirmed, holding that the prior conviction was merely an element of the charged offense rather than a basis for double jeopardy, that the indictment adequately stated the crime under statutory standards, that the warrantless arrest was lawful because officers observed the felony in progress, and that evidentiary rulings did not require reversal.

criminal lawprocedureguns

The case involved a defendant indicted for committing an act of sexual perversity with a 15-year-old boy on June 13, 1947, in Marion County, Oregon. The state elected to prove the crime occurred on that specific date, but the trial court instructed the jury that the exact date was not material as long as it was within the three-year period before the indictment. The defendant had requested a jury instruction limiting consideration of other similar acts to corroboration of the charged date and requiring acquittal if the act on June 13 was not proven, but this was not given. The Oregon Supreme Court reversed the conviction, holding that once the state elects a specific date, the jury may only convict based on an act committed on that date, and evidence of other acts serves only as corroboration.

criminal lawprocedure

This case involved an attorney seeking to enforce a lien for fees against bequests left to three German nationals in the 1941 will of Elizabeth Miller, after those beneficiaries' interests were seized by the U.S. Alien Property Custodian in 1944 under the Trading with Enemy Act. The circuit court denied the attorney's petition to fix and collect his fees directly from the estate, and the Oregon Supreme Court affirmed. The core reasoning was that the vesting order transferred all rights in the property to the United States, thereby divesting the state court of jurisdiction over the fund and requiring the attorney to pursue any claim through the federal custodian instead. The decision was without prejudice to further proceedings under the federal statute.

federal powerpropertyprocedure

This case concerned a challenge to the administration of Ada B. Shepherd's estate, in which her sister sought to revoke the surviving husband's letters of administration and probate a will executed two weeks before the marriage. The court ruled that the decedent died intestate because the will was revoked by her subsequent marriage, and it affirmed the husband's appointment as administrator. The decision rested on an Oregon statute providing that a will is deemed revoked by the testator's later marriage; the will's general clause providing for an unnamed future spouse did not qualify for any exception to this absolute rule, as confirmed by prior Oregon precedents treating the revocation as non-presumptive.

family lawproperty

This case involved a lawsuit by Nora E. Thomas and her husband to set aside a 1945 deed conveying property in Portland, Oregon, to their adopted daughter, defendant Barbara E. Johnson (now Thomas v. Johnson), subject to a life estate in Nora Thomas. The plaintiffs alleged undue influence, false representations about the defendant's intent to provide care, and lack of consideration, claiming the defendant had exploited a confidential relationship to induce the transfer and later abandoned her mother. The trial court dismissed the complaint after finding no fiduciary relationship, no undue influence, and that the grantor had voluntarily executed the deed to prevent her husband from acquiring an interest in the property. On appeal, the court affirmed, holding that the evidence showed the conveyance was the grantor's independent decision, influenced neither by fraud nor coercion, and that no agreement to provide lifelong care formed part of the consideration.

family lawproperty

The case involved the conviction of chiropractor Fred Jeannet for manslaughter by performing an abortion on Violet M. Givens, who died from resulting complications including peritonitis and a punctured uterus. The court affirmed the conviction, holding that the state presented sufficient evidence of the corpus delicti through proof of the victim's death and the criminal agency causing it, along with adequate corroboration of accomplice testimony regarding the procedure. The trial court did not err in denying the motion for directed verdict or the requested jury instruction on alternative causes of death, as the evidence supported the jury's finding beyond a reasonable doubt.

criminal lawabortion

This case involved a divorce action brought by Tressa Brennan against her husband James B. Brennan, alleging cruel and inhuman treatment including physical assaults, threats of violence, name-calling, and false accusations of adultery. The trial court granted the divorce to the plaintiff, awarding her attorney's fees and costs, and the defendant appealed, arguing insufficient evidence and claiming condonation through cohabitation. The appellate court affirmed the decree, finding that the evidence supported the allegations of cruelty, particularly the unproven adultery accusation, and that condonation requires express forgiveness rather than mere cohabitation.

family law

In Bothe v. Bothe, the plaintiff wife sought a divorce on grounds of cruel and inhuman treatment, alleging that her husband had used harsh language toward her, insisted on having his mother live in their home despite knowing they could not get along, and allowed his mother to make cutting remarks while favoring her over the plaintiff. The trial court ruled in the plaintiff's favor after hearing testimony from the parties. On appeal, the court affirmed the decree of divorce, reasoning that the evidence established an excessive maternal influence in the home that distressed the plaintiff, with no material contradictions in the key facts, and that the trial judge's firsthand assessment of the witnesses supported the outcome. The court also awarded the plaintiff an additional $100 in attorney fees for the appeal.

family law