In Banc. This is an action for damages, predicated upon an assault and battery alleged to have been committed by defendant H.C. Nelson and his two co-defendants, Virgil Peterson and F.F. Brackett. *Page 156
The plaintiff contended that the three defendants, while under the influence of intoxicating liquor, enticed him to a room in the Moore hotel at Ontario, Malheur county, and there assaulted and beat him. Defendant Nelson pleaded self-defense. The record tends to show that his co-defendants are fugitives from justice and have never appeared in court. The plaintiff demanded judgment against the defendants jointly and severally for $2,500 compensatory damages and $2,500 punative damages. As a result of the trial, the plaintiff recovered judgment against defendant Nelson in the sum of $600. Nelson has appealed. While a number of exceptions were saved during the trial, but two assignments are here for our disposition. By assignment number one, defendant asserts that the court erred in denying his motion to disqualify the trial judge. This assignment is based upon section 1-405, Oregon Code 1930, which reads:
"No judge * * * shall sit to hear or try any suit, action or proceeding when it shall be established, as hereinafter provided, that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. In such case the presiding judge shall forthwith transfer the suit or action * * *, or call in a judge from some other court * * *."
Under section 1-406 of our Code, prejudice may be established as follows:
"Any party to or any attorney appearing in any action, suit or proceeding in a circuit court may establish such prejudice by motion supported by affidavit that the judge before whom the action or suit is pending is prejudiced against such party or attorney, so that such party or attorney can not, or believes that he can not, have a fair and impartial trial before such *Page 157 judge. And that it is made in good faith and not for the purpose of delay, and shall be filed with such motion at any time prior thereto or within one day after such action, suit or proceeding is at issue upon a question of fact, or such further time as the court may allow, and not otherwise. * * *"
Issues arising upon the pleadings are of two kinds: of law and of fact: Oregon Code 1930, § 2-101. An issue of law arises "upon a demurrer to the complaint, answer, or reply, or to some part thereof": Oregon Code 1930, § 2-102. An issue of fact arises —
"1. Upon a material allegation in the complaint, controverted by the answer; or,
"2. Upon new matter in the answer, controverted by the reply; or,
"3. Upon new matter in the reply, except an issue of law is joined thereon": Oregon Code 1930, § 2-103.
Section 2-104 provides:
"Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases the issues of law shall be first tried, unless the court otherwise direct."
We learn from the record that the complaint in this case was filed on September 5, 1929. Defendant challenged the sufficiency of the complaint by demurrer, and thereby an issue of law arose that was determined against the defendant on January 17, 1930. Defendant filed his answer on January 25, 1930, in which he controverted the material allegations of plaintiff's complaint. A reply was filed on August 20, 1930, and the defendant's motion for change of judge and affidavits in support thereof were filed on August 26 following. Thus it is apparent that the plaintiff's allegations of fact had been at issue more than one day when the defendant filed his motion to disqualify the trial judge. It follows that this motion came too late, *Page 158 and was properly denied. In Strowbridge v. City of Chiloquin,130 Or. 444 (277 P. 722, 280 P. 657), this court held that, where plaintiff's motion to disqualify the judge was not presented until after a motion and demurrer had been presented and argued, and the case was put at issue on facts more than one day prior thereto, the plaintiffs were not entitled to disqualify the judge under General Laws of Oregon, 1925, chapter 143.
The defendant says the court erred in denying his motion for postponement. On August 26, 1930, the case was set for trial. Later in the same day the defendant filed a motion for postponement, supported by affidavit, which motion was denied.
A motion to postpone a trial is sufficient only when it complies with the provisions of section 2-107, Oregon Code 1930. That section provides:
"A motion to postpone a trial on the ground of the absence of evidence shall only be made upon affidavit showing the materiality of the evidence expected to be obtained, and what diligence has been used to procure it, and also the name and residence of the witness or witnesses. * * *"
The opinion in North American Securities Co. v. Cole, 61 Or. 1 (118 P. 1032), delivered by this court through Mr. Justice McBRIDE, is peculiarly applicable to the facts shown by the record in the instant case. In that case it was held:
"The affidavits are vulnerable to the same objection suggested in the case of Cole v. Willow River Etc., Company, 60 Or. 594 (117 P. 659, 118 P. 1030), just decided. They give no reasons why counsel expect to prove by the witnesses named the facts that they assume they will testify to. If they have stated to the affiant or to any person that these facts existed, or have communicated the substance of the alleged testimony *Page 159 to affiant by letter or telegram, or in any way, the court should have been informed of the source of affiant's information and the grounds of his belief that the absent witnesses would, if present, testify as he says he believes they will."
The motion seeking postponement of the case in order to take the depositions of the co-defendants was properly denied. There was no abuse of the discretion vested in the court in the matter of the ruling. If the defendant intended to depend upon the testimony of his co-defendants, he had an abundance of time within which to take their depositions after the service of the summons upon him. See Oregon Code 1930, § 9-1502.
This case should be affirmed. It is so ordered.
ROSSMAN and CAMPBELL, JJ., not sitting.