[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 468 Plaintiff filed his petition in the County Court of Tillamook County for a writ of habeas corpus to obtain from the defendants the custody of a child. The defendants filed their return, the plaintiff demurred to the return, and the demurrer was overruled. The order recited: *Page 469
"Therefore, it is ordered that the demurrer of plaintiff to the return of the defendants be and the same is hereby overruled.
"Thereupon, plaintiff elected to stand upon said demurrer, and refused to answer or deny any part of the same and said parties stipulated in open court * *."
Following the entry of the decree, the plaintiff gave notice of appeal to the Circuit Court and filed his undertaking on appeal. In the Circuit Court he filed a transcript of the aforementioned decree, notice of appeal and of the undertaking. Immediately thereafter he moved the Circuit Court for a voluntary nonsuit, which, after argument by both sides, was allowed. Some days later the defendants moved the Circuit Court for an order vacating the nonsuit, and also moved to dismiss the appeal. This motion recited that it was based upon the premise that the plaintiff had failed to file in the Circuit Court a sufficient transcript; more particularly, it specified that the transcript "does not contain the testimony, depositions, and other papers on file in the county court containing the evidence heard and offered at the trial in the county court." These motions were overruled and the defendants appealed to this court, assigning as error: (1) the action of the Circuit Court in permitting plaintiff to take a voluntary nonsuit, and (2) the order of the Circuit Court overruling defendants' motion to dismiss the appeal from the County Court.
Counsel for plaintiff frankly states that the appeal from the County Court to the Circuit Court was taken for the sole purpose of relieving the plaintiff from the effects of the decree of the County Court; in explanation he states that the decree contains statements which were untrue. AFFIRMED. *Page 470 It is the contention of the defendants that the Circuit Court should have dismissed the appeal because the transcript from the County Court was not accompanied with the evidence adduced before the County Court. As we have seen, the plaintiff did not take his appeal for the purpose of having a trial in the appellate court, but for the sole purpose of taking a voluntary nonsuit. The evidence would have served no purpose at all. Section 555, Or. L., provides:
"When it appears by affidavit to the satisfaction of the court that the transcript is incomplete in any particular substantially affecting the merits of the judgment or decree appealed from, on motion of the respondent the court shall make a rule upon the clerk of the court below, requiring him to certify as to such alleged omission, and if true," transmit to the appellate court the missing papers "or, in such case, the respondent may move to dismiss the appeal * *."
When the plaintiff moved for a nonsuit, the defendants did not call to the Circuit Court's attention any incompleteness in the transcript; no affidavit was ever filed, showing that more documents on file with the County Court were necessary in the Circuit Court to enable the latter to intelligently pass on the motion for nonsuit. Nor did the County Court ever certify to any omission. We must, therefore, *Page 471 assume that the record was sufficient to confer jurisdiction upon the Circuit Court. Jurisdiction having been conferred, the Circuit Court was authorized to try the case de novo: Or. L., §§ 556 and 559, subd. 3; In re Plunkett's Estate, 33 Or. 414 (54 P. 152); Slaughter v. Martin, 9 Ala. App. 285 (63 So. 689); French v. Weise, 112 Mich. 586 (70 N.W. 1101);Garfield v. Mansfield, 223 Mich. 694 (194 N.W. 526).
Jurisdiction having been conferred to proceed with the casede novo, the Circuit Court was authorized to allow the plaintiff a voluntary nonsuit: Currie v. Southern PacificCo., 23 Or. 400 (31 P. 963); Leonard v. Security BuildingCo., 179 Mo. App. 480 (162 S.W. 685); French v. Weise,112 Mich. 586 (70 N.W. 1101); Garfield v. Mansfield Steel Co.,223 Mich. 694 (194 N.W. 526); Pence v. Gabbert,67 Mo. App. 493; 6 Ency. of Pl. Pr. 833; 18 C.J. 1158.
The record is not before us showing what, if any, relief the defendants sought in the County Court. Section 182, Or. L., provides a plaintiff may take a voluntary nonsuit, unless the answer contains a counterclaim. An application for a writ ofhabeas corpus would not permit a counterclaim.
AFFIRMED.
RAND, C.J., and McBRIDE and COSHOW, JJ., concur. *Page 472