Dowd v. American Surety Co.
Oregon Supreme Court
From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice McBride. This is an action by James Dowd, Executor and Kate Dowd, Executrix of the last will and testament of James Dowd, deceased, against the American Surety Company of New York. The complaint alleges: That James Barry died on September 10, 1908. That plaintiffs are his executors.
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From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice McBride. This is an action by James Dowd, Executor and Kate Dowd, Executrix of the last will and testament of James Dowd, deceased, against the American Surety Company of New York. The complaint alleges: That James Barry died on September 10, 1908. That plaintiffs are his executors. That in 1906 the Pence Company a corporation, began an action to condemn a right of way for a ditch, flume, or canal across the land of Barry, and, desiring to commence the immediate construction of the ditch, made and executed an undertaking with…
1Opinion of the CourtJustice McBride
1. The demurrer to the defendant’s 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. It asks to be subrogated to any rights that the Pence Company have in the land, but does not allege that it has any such rights, and, in fact, contends that it has not acquired any.
2. The court erred in sustaining the demurrer to defendant’s answer. The submission being made in an action pending and being for the purpose of ascertaining a particular fact, namely, the amount of damages, the…
2Cited by2 opinions
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