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Employee Benefits Ins. v. Grill

Oregon Supreme Court
Mar 11, 1986
300 Or. 587 (Or. 1986)

Summary

addressing motion based on the nature of the relief sought, not on the wording of the caption

Summary of this case from State v. Barone

Opinion

No. 83-10-368; CA A36740; SC S32468

On petition for review of defendants Grill filed February 7, 1986

Order of Court of Appeals dated November 27, 1985 Remanded March 11, 1986

In Banc

David Gernant, Portland, for petitioners on review. With him on the petition were John G. McLaughlin Associates and Kelly T. Hagan, Portland.

No appearance contra.


MEMORANDUM OPINION.

Petition for review allowed. Reversed and remanded to the Court of Appeals.

MEMORANDUM OPINION

The claim for relief was for judgment of foreclosure of trust deeds. The trial court allowed plaintiff's motion for summary judgment and entered judgment accordingly. Defendants Grill moved to set aside the judgment, expressly basing the motion on ORCP 71B, while arguing that their motion was based on evidence available only after the ruling on the motion for summary judgment. The trial court denied the motion to set aside the judgment.

Within 30 days of the entry of the order denying the motion to set aside the judgment but more than 30 days after judgment, defendants Grill appealed from the judgment and the order denying the motion to set aside the judgment. Plaintiff moved to dismiss the appeal from the judgment as being not timely. Defendants Grill opposed the motion, relying on Cooley v. Roman, 286 Or. 807, 810-11, 596 P.2d 565 (1979), and an argument that their motion to set aside the judgment, despite its text, was actually a motion for a new trial under ORCP 64. The Court of Appeals allowed the motion to dismiss the appeal from the judgment as being not timely and entered an order dismissing the appeal from the judgment.

In Cooley v. Roman, supra, we held that a motion to set aside a summary judgment qualifies as a motion for a new trial within the meaning of ORS 19.026 (2). The order of dismissal is reversed and the cause is remanded to the Court of Appeals.


Summaries of

Employee Benefits Ins. v. Grill

Oregon Supreme Court
Mar 11, 1986
300 Or. 587 (Or. 1986)

addressing motion based on the nature of the relief sought, not on the wording of the caption

Summary of this case from State v. Barone

In Grill, a motion for summary judgment was allowed, and a motion to set the summary judgment aside was made under ORCP 71B (relief from judgment based on mistake, inadvertance [sic], excusable neglect or newly discovered evidence), not under ORCP 64 (new trial).

Summary of this case from Carter v. U.S. National Bank

In Employee Benefits Ins., the defendant expressly asserted that there was newly discovered evidence, a statutory ground for a new trial motion.

Summary of this case from Alternative Realty v. Michaels

In Grill, a motion for summary judgment was allowed, and a motion to set the summary judgment aside was made under ORCP 71B (relief from judgment based on mistake, inadvertance, excusable neglect or newly discovered evidence), not under ORCP 64 (new trial).

Summary of this case from Carter v. U.S. National Bank
Case details for

Employee Benefits Ins. v. Grill

Case Details

Full title:EMPLOYEE BENEFITS INSURANCE COMPANY Respondent on Review, v. GRILL et al…

Court:Oregon Supreme Court

Date published: Mar 11, 1986

Citations

300 Or. 587 (Or. 1986)
715 P.2d 491

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