foundation claim in Oregon

1961In Hayward v. Morrison et ux, 194 Or 335, 348 , 241 P2d 888 , the court said: “The foundation of this doctrine is fraud; not necessarily an antecedent or positive fraud, but a fraud inhering in the consequence of this setting up the statute.

1961In Hayward v. Morrison et ux, 194 Or 335, 348 , 241 P2d 888 , the court said: “The foundation of this doctrine is fraud; not necessarily an antecedent or positive fraud, but a fraud inhering in the consequence of this setting up the statute.

2020Cite as 302 Or App 717 (2020) 729 then the implication to the jury that the expert’s opinion is at odds with reliable, authoritative principles will be false.

2008State v. Fish, 321 Or 48, 53 , 893 P2d 1023 (1995).

2008State v. Fish, 321 Or 48, 53 , 893 P2d 1023 (1995).

2007In order to lay the foundation for our analysis, we quote extensively from the Supreme Court’s discussion in State v. Henderson, 341 Or 219, 224-25 , 142 P3d 58 (2006): “ORS 133.545 and ORS 133.555 govern the issuance of search warrants.

2007In order to lay the foundation for our analysis, we quote extensively from the Supreme Court’s discussion in State v. Henderson, 341 Or 219, 224-25 , 142 P3d 58 (2006): “ORS 133.545 and ORS 133.555 govern the issuance of search warrants.

2003The foundation of its analysis is in the following statement: "Clearly the sentencing court here erred in imposing a `sentence in the case,' because, as the state has conceded, it should have merged the convictions for fourth-degree assault into the convictions for the greater offenses, and should not have imposed sentences at all for the fourth-degree assault convictions." 187 Or.App. at 132 , 66 P.3d at 579 .

2003The foundation of its analysis is in the following statement: "Clearly the sentencing court here erred in imposing a `sentence in the case,' because, as the state has conceded, it should have merged the convictions for fourth-degree assault into the convictions for the greater offenses, and should not have imposed sentences at all for the fourth-degree assault convictions." 187 Or.App. at 132 , 66 P.3d at 579 .

2000The foundation for the analysis is Article XI, section 2, which provides, in pertinent part: “The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * * » Although the Supreme Court has given that provision a variety of constructions since its adoption in 1906, the court’s general approach has been consistent since 1978, when it decided LaGrande/Astoria v. PERB, 281 Or 137 , 576 P2d 1204 , on recons 284 Or 173 , 586 P2d 765 (1978).

2000The foundation for the analysis is Article XI, section 2, which provides, in pertinent part: “The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * * » Although the Supreme Court has given that provision a variety of constructions since its adoption in 1906, the court’s general approach has been consistent since 1978, when it decided LaGrande/Astoria v. PERB, 281 Or 137 , 576 P2d 1204 , on recons 284 Or 173 , 586 P2d 765 (1978).

2000The foundation for the analysis is Article XI, section 2, which provides, in pertinent part: “The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * * » Although the Supreme Court has given that provision a variety of constructions since its adoption in 1906, the court’s general approach has been consistent since 1978, when it decided LaGrande/Astoria v. PERB, 281 Or 137 , 576 P2d 1204 , on recons 284 Or 173 , 586 P2d 765 (1978).

2000The foundation for the analysis is Article XI, section 2, which provides, in pertinent part: “The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * * * » Although the Supreme Court has given that provision a variety of constructions since its adoption in 1906, the court’s general approach has been consistent since 1978, when it decided LaGrande/Astoria v. PERB, 281 Or 137 , 576 P2d 1204 , on recons 284 Or 173 , 586 P2d 765 (1978).

1993However, it argues that it was not necessary to lay a foundation for the test at trial, because there has been legislative and administrative approval of the test that mandates its admission if performed in accordance with OAR 257-25-020(1). [2] In State v. Reed, 83 Or.App. 451 , 732 P.2d 66 (1987), we held that in the absence of an evidentiary foundation to qualify the arresting officer as an expert on the reliability of the relationship, if any, between alcohol consumption and nystagmus, it was error to admit similar testimony. 83 Or.

1993However, it argues that it was not necessary to lay a foundation for the test at trial, because there has been legislative and administrative approval of the test that mandates its admission if performed in accordance with OAR 257-25-020(1). [2] In State v. Reed, 83 Or.App. 451 , 732 P.2d 66 (1987), we held that in the absence of an evidentiary foundation to qualify the arresting officer as an expert on the reliability of the relationship, if any, between alcohol consumption and nystagmus, it was error to admit similar testimony. 83 Or.

1978The cases cited by the majority which do not apply the rule stated in Draper are concerned with the application of statutes which provide for an award of attorney’s fees "as a part of the costs,” Colby v. Larson, 208 Or 121, 125 , 297 P2d 1073 , 299 P2d 1076 (1956); Railton v. Redmar, 209 Or 80, 88 , 304 P2d 408 (1956); Tiano v. Elsensohn, 268 Or 166, 168 , 520 P2d 358 (1974); "in addition to other costs” (emphasis supplied), State ex rel Nilsen v. Adams, 248 Or 269, 276 , 431 P2d 270 , 433 P2d 831 (1967); or "costs * * * including a reasonable attorney’s fee,” Douglas County v. Meyers et al,

1978The cases cited by the majority which do not apply the rule stated in Draper are concerned with the application of statutes which provide for an award of attorney’s fees "as a part of the costs,” Colby v. Larson, 208 Or 121, 125 , 297 P2d 1073 , 299 P2d 1076 (1956); Railton v. Redmar, 209 Or 80, 88 , 304 P2d 408 (1956); Tiano v. Elsensohn, 268 Or 166, 168 , 520 P2d 358 (1974); "in addition to other costs” (emphasis supplied), State ex rel Nilsen v. Adams, 248 Or 269, 276 , 431 P2d 270 , 433 P2d 831 (1967); or "costs * * * including a reasonable attorney’s fee,” Douglas County v. Meyers et al,

1978In the absence of any allegation as to the foundation of her claim for attorney’s fee, the matter found in paragraph V is surplusage, vulnerable to a motion to strike, and should be ignored when making a determination as to the jurisdiction of the court.” 225 Or at 271-72 .

1978In the absence of any allegation as to the foundation of her claim for attorney's fee, the matter found in paragraph V is surplusage, vulnerable to a motion to strike, and should be ignored when making a determination as to the jurisdiction of the court." 225 Or. at 271-72 , 357 P.2d at 521 .

1978The cases cited by the majority which do not apply the rule stated in Draper are concerned with the application of statutes which provide for an award of attorney’s fees "as a part of the costs,” Colby v. Larson, 208 Or 121, 125 , 297 P2d 1073 , 299 P2d 1076 (1956); Railton v. Redmar, 209 Or 80, 88 , 304 P2d 408 (1956); Tiano v. Elsensohn, 268 Or 166, 168 , 520 P2d 358 (1974); "in addition to other costs” (emphasis supplied), State ex rel Nilsen v. Adams, 248 Or 269, 276 , 431 P2d 270 , 433 P2d 831 (1967); or "costs * * * including a reasonable attorney’s fee,” Douglas County v. Meyers et al,

1978The cases cited by the majority which do not apply the rule stated in Draper are concerned with the application of statutes which provide for an award of attorney’s fees "as a part of the costs,” Colby v. Larson, 208 Or 121, 125 , 297 P2d 1073 , 299 P2d 1076 (1956); Railton v. Redmar, 209 Or 80, 88 , 304 P2d 408 (1956); Tiano v. Elsensohn, 268 Or 166, 168 , 520 P2d 358 (1974); "in addition to other costs” (emphasis supplied), State ex rel Nilsen v. Adams, 248 Or 269, 276 , 431 P2d 270 , 433 P2d 831 (1967); or "costs * * * including a reasonable attorney’s fee,” Douglas County v. Meyers et al,

1978The cases cited by the majority which do not apply the rule stated in Draper are concerned with the application of statutes which provide for an award of attorney’s fees "as a part of the costs,” Colby v. Larson, 208 Or 121, 125 , 297 P2d 1073 , 299 P2d 1076 (1956); Railton v. Redmar, 209 Or 80, 88 , 304 P2d 408 (1956); Tiano v. Elsensohn, 268 Or 166, 168 , 520 P2d 358 (1974); "in addition to other costs” (emphasis supplied), State ex rel Nilsen v. Adams, 248 Or 269, 276 , 431 P2d 270 , 433 P2d 831 (1967); or "costs * * * including a reasonable attorney’s fee,” Douglas County v. Meyers et al,

1978The cases cited by the majority which do not apply the rule stated in Draper are concerned with the application of statutes which provide for an award of attorney’s fees "as a part of the costs,” Colby v. Larson, 208 Or 121, 125 , 297 P2d 1073 , 299 P2d 1076 (1956); Railton v. Redmar, 209 Or 80, 88 , 304 P2d 408 (1956); Tiano v. Elsensohn, 268 Or 166, 168 , 520 P2d 358 (1974); "in addition to other costs” (emphasis supplied), State ex rel Nilsen v. Adams, 248 Or 269, 276 , 431 P2d 270 , 433 P2d 831 (1967); or "costs * * * including a reasonable attorney’s fee,” Douglas County v. Meyers et al,

1978The cases cited by the majority which do not apply the rule stated in Draper are concerned with the application of statutes which provide for an award of attorney’s fees "as a part of the costs,” Colby v. Larson, 208 Or 121, 125 , 297 P2d 1073 , 299 P2d 1076 (1956); Railton v. Redmar, 209 Or 80, 88 , 304 P2d 408 (1956); Tiano v. Elsensohn, 268 Or 166, 168 , 520 P2d 358 (1974); "in addition to other costs” (emphasis supplied), State ex rel Nilsen v. Adams, 248 Or 269, 276 , 431 P2d 270 , 433 P2d 831 (1967); or "costs * * * including a reasonable attorney’s fee,” Douglas County v. Meyers et al,

1978The cases cited by the majority which do not apply the rule stated in Draper are concerned with the application of statutes which provide for an award of attorney’s fees "as a part of the costs,” Colby v. Larson, 208 Or 121, 125 , 297 P2d 1073 , 299 P2d 1076 (1956); Railton v. Redmar, 209 Or 80, 88 , 304 P2d 408 (1956); Tiano v. Elsensohn, 268 Or 166, 168 , 520 P2d 358 (1974); "in addition to other costs” (emphasis supplied), State ex rel Nilsen v. Adams, 248 Or 269, 276 , 431 P2d 270 , 433 P2d 831 (1967); or "costs * * * including a reasonable attorney’s fee,” Douglas County v. Meyers et al,

1978The cases cited by the majority which do not apply the rule stated in Draper are concerned with the application of statutes which provide for an award of attorney’s fees "as a part of the costs,” Colby v. Larson, 208 Or 121, 125 , 297 P2d 1073 , 299 P2d 1076 (1956); Railton v. Redmar, 209 Or 80, 88 , 304 P2d 408 (1956); Tiano v. Elsensohn, 268 Or 166, 168 , 520 P2d 358 (1974); "in addition to other costs” (emphasis supplied), State ex rel Nilsen v. Adams, 248 Or 269, 276 , 431 P2d 270 , 433 P2d 831 (1967); or "costs * * * including a reasonable attorney’s fee,” Douglas County v. Meyers et al,

1978The cases cited by the majority which do not apply the rule stated in Draper are concerned with the application of statutes which provide for an award of attorney’s fees "as a part of the costs,” Colby v. Larson, 208 Or 121, 125 , 297 P2d 1073 , 299 P2d 1076 (1956); Railton v. Redmar, 209 Or 80, 88 , 304 P2d 408 (1956); Tiano v. Elsensohn, 268 Or 166, 168 , 520 P2d 358 (1974); "in addition to other costs” (emphasis supplied), State ex rel Nilsen v. Adams, 248 Or 269, 276 , 431 P2d 270 , 433 P2d 831 (1967); or "costs * * * including a reasonable attorney’s fee,” Douglas County v. Meyers et al,

1967The majority thought there was an implied exception in the statute in such cases; the minority, that “the true foundation of the doctrine [lies] in the public policy which protects the purity of government and its processes”: 287 US at 455 ; and that entrapment was a defense to be dealt with by the court, not the jury.

1939The court applied the following which it quoted from Flood v. Growney, 126 Mo. 262 , 28 S. W. 860 : “The rule now is general that a person shown not to have been heard of for seven years by those (if any) who, if he had been alive, would naturally have heard of him, is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death.” *77 After expressing a belief that Prine had abandoned the plaintiff, the court stated: “There was no probability that Prine would communicate with the plaintiff and his child whom he had aband

1939The court applied the following which it quoted from Flood v. Growney, 126 Mo. 262 , 28 S. W. 860 : “The rule now is general that a person shown not to have been heard of for seven years by those (if any) who, if he had been alive, would naturally have heard of him, is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death.” *77 After expressing a belief that Prine had abandoned the plaintiff, the court stated: “There was no probability that Prine would communicate with the plaintiff and his child whom he had aband

1912Murray v. Quigley, 119 Iowa, 6 ( 92 N. W. 269 : 97 Am.

1912Murray v. Quigley, 119 Iowa, 6 ( 92 N. W. 269 : 97 Am.

1886Jur., Sec. 1218.) In Ahrend v. Odiorne, 118 Mass. 261 , Judge Gray, now of the Supreme Court of the United States, then chief justice of the Supreme Court of Massachusetts, concluded, after an elaborate examination of the question, that the foundation of the doctrine was, that justice required that the vendor should be enabled to charge the land in the hands of the vendee as security for the unpaid purchase money, and that the restriction of it to real estate suggested the inference that the court of chancery was induced to interpose, for the reason that real estate could not be attached on me