Bechtold et al. v. Wilson et al.

• Citation: 186 P.2d 525,187 P.2d 675,182 Or. 360
• Parties: BECHTOLD ET AL. <I>v.</I> WILSON ET AL.
• Decision Date: 12 November 1947
• Court: Supreme Court of Oregon

182 Or. 360

186 P.2d 525

187 P.2d 675

BECHTOLD ET AL.v.

WILSON ET AL.

Supreme Court of Oregon.

Argued September 16, 1947.

Modified November 12, 1947.

Rehearing denied December 16, 1947.

Certiorari — Purpose

1. The writ of review does not lie to correct mere errors in exercise of rightful jurisdiction but only to keep inferior courts and tribunals within bounds of their jurisdiction and compel them to proceed regularly in disposition of matters brought before them for determination. O.C.L.A. §§ 11-201, 11-202, 11-204, 11-210.

Certiorari — 1889 amendment — Effect — Concurrent

2. The only effect of the 1889 amendment to statute making writ of review "concurrent" with right of appeal was to preserve right to the writ if otherwise proper notwithstanding existence of right of appeal. O.C.L.A. § 11-204.

See Words and Phrases, Permanent Edition, for all other definitions of "Concurrent".

Certiorari — Common law writ

3. The "writ of review" in Oregon is substantially the common law writ of certiorari. O.C.L.A. § 11-201 et seq.

See Words and Phrases, Permanent Edition, for all other definitions of "Writ of Review".

Certiorari — Definition

4. At common law "certiorari" could not be used as substitute for an appeal, but office thereof was to examine whether jurisdiction existed in lower court and whether its proceedings were regular, and an error of judgment by judge or officer as to facts or law could not be inquired into and corrected on such writ.

See Words and Phrases, Permanent Edition, for all other definitions of "Certiorari".

Certiorari — Criminal law

5. The purpose of Code provision that no provision in relation to appeals must be construed to prevent either party in justice court from having judgment reviewed in circuit court for errors of law appearing on face of judgment was to make an exception to section governing appeals in criminal cases, and was not intended to add anything to scope of statutory writ of review. O.C.L.A. §§ 11-204, 26-1301, 28-707.

Justices of the peace — Petition — Writ of review

6. Petition for writ of review alleging only error of law in action of justice court in overruling demurrer to the answer did not state facts sufficient to authorize issuance of writ of review. O.C.L.A. 11-201, 11-202, 11-204, 11-210.

Certiorari — Motion to quash

7. A motion to quash writ of review is proper proceeding to question sufficiency of petition. O.C.L.A. §§ 11-201, 11-202, 11-204, 11-210.

Justices of the peace — Contest on merits — Review

8. Where respondents, instead of moving to quash writ of review to review judgment of justice court, contested matter on its merits, they could not thereby confer jurisdiction on circuit court to review case on such writ where defect was jurisdictional. O.C.L.A. § 11-201 et seq.

Justices of the peace — General demurrer — Answer — Writ of review

9. Sustaining general demurrer to answer which alleged reduction in rent by OPA regulation did not exceed jurisdiction of justice of the peace as a ruling that rent regulation was invalid so as to justify invoking writ of review, where ruling might have been based upon any one or more of alleged defects in answer and it did not appear that validity of regulation was considered by the justice. Emergency Price Control Act of 1942, § 1-306, 204(d), as amended by Stabilization Extension Act of 1944, 50 U.S.C.A. Appendix, §§ 901-946, 924 (d); Stabilization Act of 1942, §§ 1-11, 50 U.S.C.A. Appendix, §§ 961-971.

                  See, 10 Am. Jur. 537
                  31 Am. Jur. 734
                  115 A.L.R. 504
                  51 C.J.S., Justice of the Peace, 244, 245
                

Appeal from Circuit Court, Douglas County.

CARL E. WIMBERLY, Judge.

William D. Green, Jr., of Roseburg, for appellants.

Harrison R. Winston, of Roseburg, for respondents.

Before LUSK, Acting Chief Justice, and BELT, BAILEY, HAY and WINSLOW, Justices.

This is a proceeding by writ of review in which the Circuit Court affirmed a judgment of a justice's court in favor of the respondents, who were plaintiffs in the action in the justice's court.

The respondents (defendants in the writ) commenced an action of forcible detainer in the Justice's Court for Deer Creek District, Douglas County, against the appellants to recover the possession of certain described real property in the City of Roseburg. Appellants, as defendants in such action, filed an answer to the amended complaint, and respondent demurred to the answer. The justice of the peace sustained the demurrer, and, the appellants refusing to plead further, entered judgment in accordance with the prayer of the amended complaint. Thereupon the appellants applied to the Circuit Court for a writ of review, their petition alleging that the justice of the peace

"* * * exercised his judicial functions negligently and erroneously, to the injury of the substantial rights of the petitioners herein in the following particulars:

"1. That the justice court erred in sustaining plaintiffs' demurrer to defendants' answer to plaintiffs' amended complaint as said answer stated facts that constituted a good and valid defense under the laws of Oregon and the United States."

A writ of review issued accordingly out of the Circuit Court. The justice of the peace made his return thereto, and, after a hearing, the Circuit Court held that the ruling on the demurrer was correct and entered an order affirming the judgment and discharging the writ. This appeal is from that order.

AFFIRMED AS MODIFIED.

LUSK, J.

In the view we take of the case the only question that need be decided is whether the remedy of writ of review was available to the appellants. If it was not, it makes no difference whether the ruling on the demurrer was erroneous or otherwise.

In Asher v. Pitchford, 167 Or. 70, 76, 115 P. (2d) 337 (1941), we had occasion to say that the scope of the writ of review and the character of decisions of inferior tribunals that may be called in question by that proceeding "are matters not always easy of solution and which have not been clearly defined by the previous decisions of this court." The re-examination of the subject which this case has demanded has given us no reason to doubt the accuracy of that observation. If anything, it is an understatement. The question now presented is essentially the same as that which we found it unnecessary to decide in Asher v. Pitchford, namely, whether a mere error of judgment of an inferior court in passing upon a question of pleading is the kind of error which can be corrected on writ of review. To determine that question, and, we hope, to settle it, a somewhat extensive review of the Oregon decisions is deemed advisable.

Writ of review in this state is a statutory remedy. The sections of O.C.L.A. pertinent to the present discussion are as follows:

"§ 11-201. The writ heretofore known as the writ of certiorari is known in this Code as the writ of review."

"§ 11-202. Any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors therein, as in this chapter prescribed, and not otherwise. Upon a review, the court may review any intermediate order involving the merits and necessarily affecting the decision or determination sought to be reviewed."

"§ 11-204. The writ shall be concurrent with the right of appeal, and shall be allowed in all cases where the inferior court, officer, or tribunal in the exercise of judicial functions appears to have exercised such functions erroneously, or to have exceeded its or his jurisdiction, to the injury of some substantial right of the plaintiff, and not otherwise."

"§ 11-210. Upon the review, the court shall have power to affirm, modify, reverse, or annul the decision or determination reviewed, and if necessary, to award restitution to the plaintiff, or by mandate direct the inferior court, officer, or tribunal, to proceed in the matter reviewed according to its decision. From the judgment of the circuit court on review, an appeal may be taken to the supreme court in like manner and with like effect as from a judgment of such circuit court in an action."

The foregoing provisions read today as they did in 1862 when they were enacted, except § 11-204, which originally provided:

"The writ shall be allowed in all cases where there is no appeal or other plain, speedy, and adequate remedy, and where the inferior court, officer, or tribunal in the exercise of judicial functions appears to have exercised such functions erroneously, or to have exceeded it[s] or his jurisdiction, to the injury of some substantial right of the plaintiff, and not otherwise." 1 Hill's Ann. L. 501, § 585.

The change in this section to its present form was effected by an amendment adopted in 1889. L.O. 1889, p. 135. The amendment, it will be observed, eliminates the provision that the writ shall be allowed "in all cases where there is no appeal or other plain, speedy, and adequate remedy", and provides instead that it "shall be concurrent with the right of appeal". No other change was made.

It is § 11-204 to which we must look to ascertain the class of cases in which the remedy of review may be used. There is no difficulty in applying the provision that the writ shall be allowed in all cases in which the inferior tribunal, in the exercise of judicial functions, appears "to have exceeded it[s] or his jurisdiction"; the confusion in the decisions has come in interpreting the provisions that "the writ shall be concurrent with the right of appeal", and shall be allowed when the inferior tribunal "appears to have exercised such functions erroneously".

Hill v. State, 23 Or. 446, 32 P. 160 (1893), appears to have been the first case in which the 1889 amendment was construed. It was there held that review was the proper remedy where the defendant in a criminal case in a justice's court was convicted under a complaint which did not charge an offense against the defendant. Referring to the 1889 amendment, the court said...