Hermann v. Hutcheson

• Decision Date: 21 June 1898
• Citation: 33 Or. 239,53 P. 489
• Parties: HERMANN et al. v. HUTCHESON. [1]
• Court: Oregon Supreme Court

53 P. 489

33 Or. 239

HERMANN et al. v. HUTCHESON. ^[1]

Supreme Court of Oregon

June 21, 1898

Appeal from circuit court, Coos county; J.C. Fullerton, Judge.

Action by Hermann & Brown against D.J. Hutcheson. From a judgment for plaintiffs, defendant attempted to appeal to the circuit court; but his appeal was dismissed, and he appeals from the judgment of dismissal. Reversed.

D.L Watson, Jr., for appellant.

S.H Hazard and John Bayne, for respondents.

WOLVERTON J.

This action was commenced in the justice's court for district No. 5, in Coos county, Ore.; and, judgment having been entered for plaintiffs, the defendant attempted to appeal to the circuit court. The notice of appeal was served by M.R Lee, constable of such precinct, who certified that he served the same "within the county of Coos and state of Oregon." The plaintiffs moved in the circuit court to dismiss the appeal for want of proof of service of notice thereof. The motion was allowed, and a judgment of dismissal entered, from which the defendant appeals to this court.

The defendant insists that the judgment of the circuit court should be reversed, because the motion to dismiss the appeal from the justice's court does not point out or specify with sufficient definiteness the defect of service of proof thereof upon which the plaintiffs relied for the dismissal and for that reason it should have been disregarded. He also contends that the proof of service is itself quite sufficient. It must be conceded that the objection to the constable's return is technical in its nature; and this under the law applicable to such cases, subjects the party who would turn it to his advantage to the observance of technical rules. In passing upon a motion of like character, Mr. Chief Justice Thayer says: "Counsel are required to specify definitely and with certainty the point of irregularity complained of." Bilyeu v. Smith, 18 Or. 335, 22 P. 1073. To constitute a good service of a notice of this kind, the officer making it is bound to the observance of several conditions the due performance of all of which he is required to signify by his return. Now, if he has omitted any one of these, it would constitute an irregularity in the service, to say the least, and would possibly render it void in toto. The rule alluded to requires that the party objecting to the service or return shall put his finger upon the condition the non-observance of which he relies upon to show the service insufficient or nugatory. The objection in the case at bar ...