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Moore v. West Lawn Memorial Park

August 2, 1973

MOORE APPELLANT,
v.
WEST LAWN MEMORIAL PARK ET AL, RESPONDENTS



Appeal from Circuit Court, Lane County. Edward Leavy, Judge.

Edward R. Fechtel, Eugene, argued the cause for appellant. With him on the briefs were Tilbury & Kane, Portland, and Husband, Johnson & Frye, Eugene.

Robert W. Hill, Eugene, argued the cause for respondent. With him on the brief were Hill & Schultz, Eugene, and Gearin, Landis & Aebi, Portland.

In Banc. Denecke, J.

Denecke

Plaintiff brought this action for damages caused by alleged libelous statements. The trial court sustained a demurrer to plaintiff's complaint upon the ground that the alleged libelous statements were absolutely privileged. Plaintiff appeals.

The defendants moved to dismiss the appeal. The ground urged was that the record was incomplete. ORS 19.108.

The pleading process was complicated. However, in essence, after the defendants' demurrer was sustained plaintiff filed an amended complaint omitting the libel cause of action to which the demurrer had been sustained. Judgment was entered against plaintiff on this complaint. Plaintiff's sole assignment of error is that the trial court erred in sustaining the demurrer to the first complaint.

Defendants contend that the allowance of the demurrer cannot be assigned as error because when plaintiff pleaded over the first complaint ceased to be a part of the record. Another way of stating defendants'

reasoning is that the plaintiff waived any objection to the trial court's ruling on the demurrer to the complaint by filing an amended complaint.

We have stated many times: "'* * * [W]hen a pleading is amended, the original pleading ceases to be a part of the record * * *.'" Wells v. Applegate, 12 Or 208, 209, 6 P 770 (1885). Whatever may have been the early practice, this is not literally true under modern appellate practice. The trial court file which contains all pleadings is required to be part of the record on appeal. ORS 19.005 (3) and 19.074.

We also have acknowledged that not only are all the pleadings physically part of the record on appeal, "[b]ut an original is not superseded by an amended complaint for all purposes, and the former may be considered as part of the record of the case for the purpose of showing when the action was commenced, and whether or not a new or different cause of action was introduced by the amendment upon the hearing of a demurrer raising those questions." Fox v. Ungar, 164 Or 226, 229, 98 P2d 717 (1940).

We also have stated many times if a pleading is amended after a demurrer has been sustained any objections to the rulings of the court on the demurrer are waived. Hume v. Woodruff, 26 Or 373, 376, 38 P 191 (1894). The "rule" was in two parts: if the demurrer was sustained and the party amended his pleading, he waived his right to object to the ruling on the demurrer; if the demurrer was overruled the demurring party waived his right to object to the ...


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