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Braat v. Andrews

September 27, 1973

BRAAT ET UX, APPELLANTS,
v.
ANDREWS ET AL, RESPONDENTS



Appeal from Circuit Court, Morrow County. William W. Wells, Judge.

Dennis D. Doherty, Heppner, argued the cause for appellants. With him on the brief were Winter & Doherty and Herman W. Winter, Heppner.

Steven H. Corey and George H. Corey, Pendleton, argued the cause for respondents. With them on the brief were Corey, Byler & Rew, Pendleton.

In Banc. O'Connell, C.J.

O'connell

This is an action brought by plaintiffs to condemn an easement across defendants' land. Judgment was entered in favor of defendants. Plaintiffs appeal, contending that the trial court erred in entering an

order nunc pro tunc which awarded defendants their attorney fees.

Plaintiffs, relying upon ORS 772.305,*fn1 Art. I, ยง 18 of the Oregon Constitution,*fn2 and ORS Chapter 35 as amended in 1971, sought to condemn an easement across defendants' land for an irrigation pipeline. Defendants interposed a demurrer to plaintiffs' complaint, which was sustained on the ground that since plaintiffs were private citizens they did not qualify as "condemners" under ORS 35.215.*fn3 On September 5, 1972, judgment was entered dismissing plaintiffs' complaint and taxing costs and disbursements against plaintiffs. On November 24, 1972, the trial court entered an order nunc pro tunc as of October 12, 1972, allowing defendants' motion to open and modify the judgment to award reasonable attorney fees. On that

same day, after a hearing, modification of the judgment was entered to include an award for attorney fees in the amount of $2,725.

Plaintiffs contend that defendants' affidavit in support of the motion to modify the judgment is not sufficient to justify granting relief from the judgment because it does not set forth any of the grounds for relief recited in ORS 18.160.*fn4

It is true that defendants have not shown any of the statutory grounds for relief. However, a court's power to vacate, correct or modify its judgment or decree is not limited to the circumstances described in ORS 18.160; in addition, the circuit judge has inherent power to modify its judgment, provided that it does so within a reasonable time.*fn5

The question is, then, whether the trial court had the authority to amend the judgment to provide for an award of attorney fees. This precise issue has not been previously decided in Oregon, but we see no reason why attorney fees should not be the ...


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