Elliott v. Oliver

• Decision Date: 22 February 1892
• Citation: 29 P. 1,22 Or. 44
• Parties: ELLIOTT, Recorder, v. OLIVER, County Clerk.
• Court: Oregon Supreme Court

29 P. 1

22 Or. 44

ELLIOTT, Recorder, v. OLIVER, County Clerk.

Supreme Court of Oregon

February 22, 1892

Appeal from circuit court, Union county; JAMES A. FEE, Judge.

Action by John S. Elliott, recorder of conveyances of Union county Or., against Turner Oliver, county clerk of Union county, Or Judgment for defendant. Plaintiff appeals. Affirmed.

T.H Crawford, Shelton & Carroll, H.H. Hewitt, C.E. Wolverton, and Tilmon Ford, for appellant.

Robert Eakin and Cox, Teal & Minor, for respondent.

LORD J.

This is an action of mandamus, brought by the plaintiff, as recorder of conveyances for Union county, against the defendant, as county clerk of said county, to recover the possession of certain records to which he claims to be entitled by virtue of his office. Upon the petition being filed, an alternative writ was issued, and to this writ the defendant demurred, and the trial court sustained the demurrer and dismissed the action. From this judgment of dismissal the plaintiff appeals, and assigns as error the sustaining of the demurrer. The demurrer to the writ, among other grounds, specifies that it does not state facts sufficient to constitute a cause of action; and the court below so held, for the reason that the act of the legislative assembly of 1889 creating the office of recorder of conveyances is unconstitutional and void. In that view it would not be possible for the plaintiff, who claims to hold the office by virtue of such act, to state facts sufficient to constitute a cause of action that would entitle him to the possession and custody of the records which he seeks to obtain by this proceeding. We ought, however, before we proceed to consider the objection urged by the defendant to the constitutionality of the act, to be satisfied that the writ stated facts sufficient to involve its consideration, and that its determination was necessary in the decision of the cause. Under the Code the petition upon which the writ issues is no part of the pleadings, and the writ must be sufficient in itself to show precisely what is claimed, and the facts upon which the claim is made. Section 596 provides that the alternative writ shall state concisely the facts, according to the petition, showing the obligation of the defendant to perform the act, and his omission to perform it, and command him that immediately after the receipt of the writ, or at some other specified time, he do the act required to be performed, or show cause before the court or judge thereof by whom the writ was allowed, at a time and place therein specified, why he has not done so, and that he then and there return the writ, with his certificate annexed of having done as he is commanded, or the cause of his omission thereof. Section 598 provides that on the return-day of the writ, or such further day as the court or judge thereof may allow, the defendant on whom the writ shall have been served may show cause by demurrer or answer to the writ in the same manner as to a complaint in an action. The verified petition forms the basis upon which the court may issue the writ, but when issued it ceases to have any office to perform. The facts stated in the writ should be the same facts stated in the petition for the writ, as no resort or reference can be had to the petition in aid of the writ. "There can be no question," said STRAHAN, J "as to the proper practice. The writ itself ought to contain every material fact alleged in the petition upon which the plaintiff relies, making it the duty of the defendant to act or do the particular things which the plaintiff demands." McLeod v. Scott, 21 Or. ----, 26 P. 1061. It is the writ which is the foundation of all the subsequent proceedings, and which may be demurred to or answered in the same manner as a complaint in an action. It is made to serve the same purpose as the complaint in other actions, and therefore must state all the material facts, and show a clear right to the relief demanded.

To the writ itself, then, we must look to determine whether the facts stated are sufficient to support the action It simply recites "that whereas, it manifestly appearing that the plaintiff is entitled to the possession of the books, papers and records, etc., which he alleges you (defendant) illegally retain in your possession and custody therefore we command you that, immediately upon the receipt of this writ, you do deliver to the plaintiff the following records," etc., "or that you show cause at a day specified why you have not done so." It nowhere appears from the writ that the plaintiff is recorder of Union county, or ever was elected such recorder, or by what right...