Appeal from Circuit Court, Deschutes County. John M. Copenhaver, Judge.
F. P. Stager, Salem, argued the cause and filed briefs for appellants.
Bernard Jolles, Portland, argued the cause for respondent. With him on the brief were Franklin, Bennett, DesBrisay & Jolles, Portland.
Plaintiffs William and Gertrude Corbett and the Dickenson Corporation, former clients of defendant E. B. Sahlstrom, a lawyer, initiated this suit to have a deed to defendant declared to be a mortgage given as security for the payment of a fee. Defendant claims the deed was given in satisfaction of the fee. Defendant filed a plea in abatement, contending that all indispensable parties plaintiff had not been joined. Plaintiffs conceded that the plea in abatement was well taken. The trial court then abated the proceedings until all indispensable parties had been made parties to the suit and allowed the above-named plaintiffs thirty days from March 2, 1971, upon penalty of dismissal, within which to bring in such parties.
On the thirtieth day a first amended complaint was filed which included all indispensable parties plaintiff as plaintiffs, with the exception of two who were named as parties defendant. There was no explanation in the amended complaint, as required by ORS 13.170,*fn1 as to why these two parties had been
made parties defendant instead of parties plaintiff. Defendant thereafter filed a motion to dismiss on the ground that plaintiffs had not complied with the court's order requiring that all persons who were indispensable parties be made parties to the case.
After the motion to dismiss was filed, and one month and twenty-six days after the deadline set by the court, the plaintiffs obtained an ex parte order of the court permitting them to file a second amended complaint in which all the necessary parties were made parties plaintiff. Thereafter, defendant's motion to dismiss because of the failure of plaintiffs to comply with the court's initial order within the allotted time was heard and the motion was allowed. Plaintiffs William and Gertrude Corbett appealed.
Plaintiffs contend that their first amended complaint, which was filed within the requisite time, complied with the court's order because it named all indispensable parties either plaintiffs or defendants. Although the court's order did not require that the missing parties be made parties plaintiff but only that they be made parties, plaintiffs had previously conceded that the missing parties were necessary parties plaintiff. Therefore, they could only have been made parties defendant if their consent to make them parties plaintiff could not have been obtained and the reasons therefor were stated in the complaint.
Prior to the hearing on the motion to dismiss, one of plaintiffs' lawyers filed an affidavit, attempting to justify the inclusion in the first amended complaint
of the two parties as parties defendant. The relevant part ...