Opinion
87-1811-NJ-1; CA A47287
Argued and submitted December 16, 1988
Affirmed February 22, 1989
Appeal from the Circuit Court, Jackson County, L.A. Merryman, Judge.
Michael G. Balocca, Ashland, argued the cause for appellants. On the brief was Daniel L. Harris, Ashland.
Carlyle F. Stout III, Medford, argued the cause and filed the brief for respondent.
Before Richardson, Presiding Judge, and Newman and Deits, Judges.
PER CURIAM
Affirmed.
Plaintiffs, owners of property on which they operate a restaurant, appeal a judgment dismissing their claim for a prescriptive easement to use part of an adjacent property for customer parking. They originally sued Ballew, the current owner of the property, and Oredson, a previous owner, as well as Ainsworth, who was dismissed from the case. They first argue that the trial court erred in finding that they had not acquired a prescriptive easement. On de novo review, ORS 19.125 (3), we conclude that plaintiffs failed to prove entitlement to the easement. See Thompson v. Scott, 270 Or. 542, 546-47, 528 P.2d 509 (1974).
They also contend that the court erred in entering a judgment for Oredson because, before trial, the court had entered an order of default against him for failure to appear. ORCP 69B(1). An order of default does not necessarily preclude the defaulting party from obtaining a judgment. See Rajneesh Foundation v. McGreer, 303 Or. 139, 734 P.2d 871, former opinion adhered to, 303 Or. 371, 737 P.2d 593 (1987). Moreover, because Ballew appeared and prevailed on the merits of plaintiffs' claim and both defendants occupied the same legal position, the trial court correctly entered judgment for the party in default. State ex rel Everett v. Sanders, 274 Or. 75, 544 P.2d 1043 (1976); Bronn v. Soules, 140 Or. 308, 312-13, 11 P.2d 284, 13 P.2d 623 (1932).
Affirmed.