Ferguson v. Byers

• Decision Date: 17 March 1902
• Citation: Ferguson v. Byers, 40 Or. 468, 67 P. 1115 (Or. 1902)
• Parties: FERGUSON v. BYERS.
• Court: Oregon Supreme Court

67 P. 1115

40 Or. 468

FERGUSON v. BYERS.

Supreme Court of Oregon

March 17, 1902

Appeal from circuit court, Polk county; R.P. Boise, Judge.

Proceedings by B.I. Ferguson against Mrs. Ollie M. Byers to review a judgment of a justice of the peace.From a judgment in favor of the defendant dismissing the writ of review, plaintiff appeals.Reversed.

This is a proceeding to review a judgment of an inferior court.The defendant, in an action against the plaintiff in the justice's court of district No. 5, Polk county, alleged in her complaint that she was the owner and entitled to the possession of a bay mare valued at $100, a colt at $25, a bay horse at $100, a buggy at $20, and a set of harness at $4 which the plaintiff attached in said county in an action wherein C.L. Pearce was plaintiff and J.A. Byersdefendant that such seizure was wrongful, and by reason thereof she was damaged in the sum of $25, and prayed for the return of the property, or the value thereof in case a delivery could not be had, and the sum of $25 damages.A summons was issued directed to the constable, commanding him to summon the plaintiff to appear at a time and place specified to answer said complaint.The return indorsed on the summons shows that the constable, not being able, after diligent search and inquiry, to find the plaintiff in said county, substituted service thereof was made upon his wife at his residence and usual place of abode.The plaintiff's counsel having appeared specially for that purpose, moved the court to quash the service of the summons on the ground that the copy thereof was not delivered at his residence and usual place of abode; but, the motion being overruled, the plaintiff refused to further plead or answer, whereupon judgment was rendered against him for the possession of the property or for the sum of $249, the value thereof, the defendant's counsel waiving all damages for the alleged wrongful taking and detention.The petition by the plaintiff herein for the writ of review sets forth the errors alleged to have been committed by the justice's court, among which it is averred that it did not have jurisdiction of the subject-matter of the action.The writ having been issued by the circuit court for said county, the return thereto sets forth the facts in substance as hereinbefore stated, and, a trial being had, the writ was dismissed and the plaintiff appeals to this court.

Frank Holmes, for appellant.

B.F Bonham and Carey F. Martin, for respondent.

MOORE J.(after stating the facts).

The question to be considered is whether the judgment of the justice's court is void in consequence of a want of jurisdiction.As a preliminary matter, however, it is insisted by defendant's counsel that the petition for the writ of review does not state facts sufficient to entitle the plaintiff to the benefit of this special remedy, because it is not alleged therein that the justice's court exercised its functions erroneously to the injury of any substantial right of the plaintiff.The writ of review under our system of procedure is analogous to the common-law remedy by certiorari.Hill's Ann.Laws,§ 582;Dayton v Board,33 Or. 131, 50 P. 1009.The statute provides, in effect, that it shall be allowed by the circuit or county courts, or by a judge thereof, upon the petition of the plaintiff, describing the decision sought to be reviewed and setting forth the errors alleged to have been committed therein.Hill's Ann.Laws, § 584;Southern Oregon Co. v. Coos Co.,30 Or. 250, 47 P. 852.Before allowing the writ of review, the court ought to be reasonably satisfied, from an inspection of the petition, that the inferior court, officer, or tribunal, in the exercise of judicial functions, appears...