Hanley v. City of Medford

• Citation: 56 Or. 171,108 P. 188
• Parties: HANLEY v. CITY OF MEDFORD et al.
• Decision Date: 19 April 1910
• Court: Oregon Supreme Court

108 P. 188

56 Or. 171

HANLEY v. CITY OF MEDFORD et al.

Supreme Court of Oregon

April 19, 1910

Appeal from Circuit Court, Jackson County; H.K. Hanna, Judge.

Suit by M.F. Hanley against the City of Medford and others. From a decree for complainant, defendants appeal. Affirmed.

In the early part of June, 1909, the city of Medford, Jackson county, Ore., began an action in the circuit court of Jackson county to condemn and appropriate a right of way for constructing a pipe line in connection with its gravity water system across the farm and meadow lands of M.F. Hanley, the plaintiff herein. The action was instituted about the close of the regular March term of that court, which, however adjourned for the term before the time for answering the complaint had expired. Thereafter, and within the time allowed by law, Hanley demurred to the complaint, whereupon the city applied to the Honorable H.K. Hanna, judge of the First judicial district and of the said court, sitting in chambers, to call a special term for the trial of the cause setting up certain facts deemed by it to be material and of special and pressing importance to the city, demanding an early completion of its pipe line. The application, however was denied, upon the ground of laches committed by the city in having neglected to begin its action in time to get the case at issue, and to avail itself of the jury impaneled to serve during the term just adjourned. Thereupon the Governor of the state, under authority supposed to be conferred by chapter 65 of the Laws of 1909, by his official order directed Honorable John S. Coke, one of the circuit judges of the Second judicial district, to proceed to Jackson county and call a special term of the circuit court for that county in the manner provided by law, and to try said cause. The Governor was induced to so act through an application and certificate addressed to him by the county judge of Jackson county, to the effect that, owing to the status of judicial business in that county, he, Judge Hanna, was unable to hold and for that reason had declined to call, a special term of court. On July 17, 1909, Judge Coke in chambers at Marshfield, Coos county, which is in the Second judicial district, issued his order, calling a special term of the circuit court for Jackson county, to be held on August 2, 1909, without the request or assent of Judge Hanna, who was then in Jackson county, and who was qualified to call, and able to attend and hold a term of court, and try the said cause, had he deemed it proper so to do. The order so issued was entered by the county clerk in the journal of the circuit court for Jackson county, and on July 22, 1909, a copy thereof was attempted to be served upon the defendant Hanley in Jackson county. At the time appointed Judge Coke convened his court, and proceeded to a trial of the case; the county clerk and sheriff of that county being in attendance thereon, but Hanley, the plaintiff, not appearing. The demurrer having been overruled, a jury was called, to which the case was submitted upon such evidence as the plaintiff saw fit to present, and a verdict was rendered, assessing the defendant's damages in the sum of $600. A city warrant for that amount payable to Hanley having been delivered to the clerk, a judgment, condemning a right of way across Hanley's land, was entered in favor of the city. Immediately upon the adjournment of the special term, this suit was brought by Hanley to restrain the city from entering upon his land, and to expunge from the journal of the circuit court the record of the proceedings had at the so-called special term of court, upon the theory that the court pronouncing said judgment was not legally convened, and was not held by any person authorized by law to hold such court, and for these reasons it was not a court known to the law, and its judgment not a judgment of the law, and is therefore void.

The complaint avers substantially the facts heretofore stated, and, in addition thereto, it is alleged that the record so made is a cloud upon plaintiff's title; that the city asserts and gives out that it intends to enter immediately upon plaintiff's land, and dig thereon a trench 2 3/4 miles long, of sufficient depth to carry a pipe line more than 16 inches in diameter, much of which is across plaintiff's meadow land; that the meadow is upon a gentle slope, the soil thereof being underlaid with a rocky formation, which assists in subirrigating the land; that the digging of the trench will cut off subirrigation; that the land appropriated includes one of plaintiff's irrigating ditches, having a carrying capacity of 1,000 inches of water, which is necessary to the irrigation of his land; and that the digging of a trench thereon for a pipe line would destroy plaintiff's said irrigating ditch, to his great and irreparable injury. The answer contains no denial of any of the foregoing averments of the complaint, but affirmatively alleges that the special term of court was duly called and held for the trial of the cause, and that the judgment therein was duly rendered and given. The reply put the new matter of the answer at issue, and, the trial being had, a decree was rendered in accordance with the prayer of the complaint, from which defendant has appealed.

Robert G. Smith (Porter J. Neff, on the brief), for appellants.

A.E. Reames, for respondent.

SLATER J. (after stating the facts as above).

The material facts of the case having been admitted by the answer, there are but two questions of the law to be considered and determined, namely: (1) Is the judgment of condemnation void, as the act of a court unknown to the law; and (2), if it is void, will this suit lie? We answer both of these questions in the affirmative. A judgment to be valid and binding must be the decision or sentence of the law pronounced by a court or other competent tribunal upon a matter contained in the record. 1 Freeman on Judgment, § 2. The element of this definition, peculiarly applicable to the question in hand, is this: Was the decision in this case which purports to be a judgment of a court pronounced by a person then invested with judicial authority? "A court consists of persons officially assembled under authority of law at the appropriate time and place for the administering of justice." Marsden v. Harlocker, 48 Or. 90, 97, 85 P. 328, 331, 120 Am.St.Rep. 786. To constitute a lawful court, therefore, the persons who assume to hold such court and dispense justice must be officially assembled under authority of law, and the court must be held at the appropriate time and place appointed by law therefor. If the person assuming to act as judge was not then invested with judicial authority (that is, with the power of the law to declare and record its mandates), then his acts in attempting so to do are of no consequence whatever, and are void. And if he were fully invested with judicial authority, so as to make his pronouncement of the law effective, still the time and place of holding the court are equally essential; for, when the law prescribes the time and place for the holding of court, then time and place are as essential limitations of jurisdiction as are subject-matter and parties. Ex parte Branch & Co., 63 Ala. 383; McCool v. State, 7 Ind. 378; Brumley v. State, 20 Ark. 77; Norwood v. Kenfield, 34 Cal. 329, 332; Ex parte De Hay, 3 S.C. 567.

To determine the question presented, it will be necessary to consider some provisions of the fundamental law: "The Supreme Court shall consist of four justices, to be chosen in districts by the electors thereof, who shall be citizens of the United States, and who shall have resided in the state at least three years next preceding their election, and after their election, to reside in their respective districts. The number of justices and districts may be increased, but shall not exceed five, until the white population of the state shall amount to one hundred thousand, and shall never exceed seven; and the boundaries of districts may be changed, but no change of district shall have the effect to remove a judge from office, or require him to change his residence without his consent." Article 7, § 2, Const. Section 8 of article 7 provides that: "The circuit court shall be held twice, at least, in each year, in each county organized for judicial purposes, by one of the justices of the Supreme Court, at times to be appointed by law; and at such other times as may be appointed by the judges severally, in pursuance of law." This latter section was intended to determine the person authorized to hold the court, and to require that it be held at particular times. As to the person, it is required that the circuit court be held by one of the justices of the Supreme Court, but it is not clearly expressed by which justice it is to be held in each particular county; yet we think it plainly inferable from the language of other sections of that instrument that it was intended that each justice of the Supreme Court was to be ex officio judge of the circuit court of the district in which he was elected; for the several justices of the Supreme Court were required, not only to be elected in separate districts, but, after their election, to reside in their respective districts. Article 7 § 2, Const. We understand that to have been the interpretation of section 8 by this court, when, in deciding the case of Cline v. Greenwood, 10 Or. 230, 232, Mr. Justice Lord in delivering the opinion made use of the following language: "Although called Supreme Judges, they were not elected by the whole body of voters from the state, but by the voters from each judicial district from which they were chosen. They were 'justices of the Supreme Court'--five in number--and the offices they held...