Hill v. State

• Decision Date: 30 January 1893
• Citation: 23 Or. 446,32 P. 160
• Parties: HILL v. STATE.
• Court: Oregon Supreme Court

32 P. 160

23 Or. 446

HILL v. STATE.

Supreme Court of Oregon

January 30, 1893

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

Homer Hill was tried and convicted in a justice's court on a complaint for trespass, and sued out of the circuit court a writ of review. From a judgment of the circuit court dismissing the writ for want of jurisdiction, defendant appeals. Reversed.

A.M Hurley, for appellant.

Geo. E Chamberlain, Atty.Gen., for the State.

LORD C.J.

The defendant was tried and fined in a justice's court, upon a complaint for trespass, conceded to be fatally defective. A writ of review was sued out of the circuit court, which, upon motion, was dismissed for want of jurisdiction. The error alleged in this ruling is the ground of the appeal. The ruling was based on the assumption that there is no right to the writ to review the judgment of a justice's court in a criminal action when the fine is less than $20, for the reason that the right to the writ is concurrent with the right of appeal. A correct determination of the question presented depends upon the construction to be given to section 585 of Hill's Code, as amended by the act of 1889. Prior to the amendment, the writ was allowed in all cases where there was no appeal, and where the inferior tribunal exercised its judicial functions erroneously, or exceeded its jurisdiction. But by the amendments, section 585 reads as follows: "The writ shall be concurrent with the right of appeal, and shall be allowed in all cases where the inferior court, officer, or tribunal, in the exercise of judicial functions, appear to have exercised their functions erroneously, or to have exercised it or his jurisdiction to the injury of some substantial right of the plaintiff, and not otherwise." It is manifest, as the section now stands, that where there is a right of appeal there is a right to a writ of review, as the latter is made concurrent with the former, so that in all cases, where the inferior tribunal exceeds its jurisdiction or exercises its powers erroneously, and a right of appeal exists, there is the concurrent right of review, As an appeal could not be taken in a criminal action in a justice's court where the fine is less than $20, (section 2161 Hill's Code,) the trial court held that, as the fine was less than $20, the right to the writ was not authorized, and could not be granted; or in other words, as the right of review...