City of Portland v. Gaston
| Decision Date | 11 March 1901 |
| Citation | 63 P. 1051,38 Or. 533 |
| Parties | CITY OF PORTLAND v. GASTON. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Multnomah county.
Action by the city of Portland against Mary W. Gaston. From a judgment awarding damages, defendant appeals. Motion to dismiss. Granted.
D Solis Cohen, for the motion. Seneca Smith, opposed.
This is a motion to dismiss an appeal from judgment of the circuit court rendered on an appeal from the action of the common council of the city of Portland in the matter of the assessment of damages suffered by the defendant in consequence of the laying out and establishment of Main street through her premises. The charter of the city (Sess.Laws 1898, p. 146), after conferring upon the council power and authority to establish and open streets, and prescribing in detail the method of procedure, provides that the owner or owners of any lot or part thereof sought to be appropriated may, within 20 days from the adoption of the report of the viewers by the council, appeal to the circuit court of Multnomah county from such report and assessment of damages, limiting the inquiry, however, on such appeal, to the question of "the excess of damages over benefits" (sections 112, 113), and that such appeal shall be conducted, heard, and determined in the circuit court, and the judgment thereon enforced, as far as practicable, as in an action at law. It is also provided that the jury shall view the property to be appropriated, that proof of damages and benefits may be introduced by the parties to the litigation, and in making the reassessment the jury shall be governed by the same laws as in the charter provided for the action of viewers, and that their verdict "shall be a final and conclusive determination of such assessment." Section 114. Section 117 directs that, in case of an appeal to the circuit court from the assessment of damages, the council shall, immediately after judgment is rendered therein, make an appropriation for the amount of damages and costs, if any, assessed by the jury against the city, and order warrants drawn on the treasurer, payable out of the fund provided for that purpose, for the amount thereof, in favor of the owner or owners of such property and "that unless said appropriation shall be made and said warrants so drawn and ready for delivery and the full amount of such appropriation shall be in the city treasury subject to the payment of such warrants *** within six months from the date of the rendition of judgment or decree on appeal, all acts and proceedings under such survey and view shall be null and void." The contention for the city is that, under these provisions of the charter no appeal will lie to this court from the judgment of the circuit court in the matter of the assessment of damages for the opening or laying out of a street, and this view we think is supported by the authorities. An appeal in an action at law, it is true, under our system, partakes somewhat of the nature of a writ of error, which in most cases was a matter of right at common law; but with us it depends wholly upon statutes granting that right, and not upon any principle of the common law. The right of a litigant to prosecute an appeal or writ of error is a matter pertaining to the mode of judicial procedure, and is not guaranteed by our constitution. The provision (article 7, par. 6) that this court shall have jurisdiction to revise the final decisions of the circuit courts is not self-executing, and does not mean that all decisions of such courts may be brought here for revision, in the absence of a prescribed method by which jurisdiction may be...
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Ex parte France
...has no other”-citing Batterman v. Finn, 40 N. Y. 340;Delaney v. Brett, 51 N. Y. 78; Grissler v. Fowler, 55 N. Y. 675. In Portland v. Gaston, 38 Or. 533, 63 Pac. 1051, the Supreme Court of that state held: “The Legislature has the power to define in what cases, and under what circumstances, ......
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State v. Colgrove
...what cases, and under what circumstances, and in what manner, an appeal may be taken to this court.’ " (Quoting City of Portland v. Gaston , 38 Or. 533, 535, 63 P. 1051 (1901) )). Before the enactment of SB 896, statutes authorizing an appeal often governed both "appealability" and "reviewa......
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State v. Endsley
...Board of Missions v. Ah Won, 18 Or. 339, 344, 22 P. 1105. But these decisions were over-ruled sub silentio in City of Portland v. Gaston, 38 Or. 533, 63 P. 1051. Article VII, § 6 was held to be not self-executing. 'The legislature', the court said, 'has the power to define in what cases, an......
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State v. Colgrove
... ... prejudice, or on the court's own motion or the motion of ... a district or city attorney, the court may issue an order ... requiring the defendant to show cause why the court ... and in what manner, an appeal may be taken to this ... court.'" (Quoting City of Portland v ... Gaston, 38 Or. 533, 535, 63 P 1051 (1901)). Before the ... enactment of SB 896, statutes ... ...