Holmes v. Cole

• Decision Date: 07 April 1908
• Citation: 94 P. 964,51 Or. 483
• Parties: HOLMES et al. v. COLE et al.
• Court: Oregon Supreme Court

94 P. 964

51 Or. 483

HOLMES et al. v. COLE et al.

Supreme Court of Oregon

April 7, 1908

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Petition by W.H. Holmes and another against Oscar Cole, personally and as administrator of the estate of Levi Bartmess, and another for a writ of review. From an order of dismissal, plaintiffs appeal. Affirmed.

This is an appeal from an order of the circuit court dismissing a writ of review, for the reason that the petition does not state facts sufficient to warrant the issuance of the writ. The petition for the writ recites that the administration of the estate of Levi Bartmess was pending in the county court in the state of Oregon for Marion county, the estate being valued at $5,500, that there are two heirs--Harvey H. Cole and James T. Cole--and that the latter could not be found nor his place of residence ascertained. On the petition of Harvey, Oscar Cole, his son, was appointed administrator. The plaintiffs were the attorneys for the estate, and Harvey desiring to acquire the title to the property divested of the claim of James T., jointly with Oscar, employed them to negotiate a loan of $2,000 to the estate, to be secured by mortgage on the land, for the purpose of funding its debts including a fee of $1,000 to the plaintiffs for said service and to procure thereafter an administration sale of said land to pay said mortgage and at which Harvey might become the purchaser. Plaintiffs, as such attorneys, received the money upon said loan, and retained $1,000 thereof on the said fee and refused to turn it over to the administrator. Thereafter the administrator filed a petition in the county court, reciting these facts, and asking that plaintiffs be required to pay over said sum to the administrator. The county court on November 20, 1905, granted an order thereon, requiring said attorneys to pay over the same, or show cause within 10 days why they should not be punished for contempt in not doing so. Plaintiffs herein answered said petition, setting up their claim to the said $1,000 as above detailed, all of which answer was stricken out upon motion, except the allegations that they procured the loan and retained $1,000 for themselves. Also plaintiffs on the 23d day of June, 1906, by motion and affidavit in the county court, asked for an order that Harvey H. Cole be made a party to this proceeding as the heir of the decedent and as the party with whom the contract was made, which application was allowed ex parte; but afterwards, on July 9th, said order was revoked and the cause set for hearing July 18, 1906, whereupon, July 16, 1906, this review proceeding was commenced, the petition for which contains sufficient recitals to disclose the foregoing facts. On the return day of the writ, namely, July 27th, the administrator, by his attorneys, filed a motion to quash the writ, for the reason that the petition was not filed within six months after the making of the order of November 20, 1905, and that no reviewable order had been made by the court. It also assigns other grounds, but which relate only to the merits. The circuit court granted said motion to quash the writ, for the reason that it appeared from the petition that the orders sought to be reviewed are not final decisions or orders, and therefore not subject to review.

A.M. Cannon and Frank Holmes, for appellants.

J.E. Hedges and John Bayne, for respondents.

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

The only ruling made by the circuit court was upon the motion to dismiss or quash the writ. The appeal has been argued here by both parties upon the merits as well as upon the motion, but we can consider no question not passed on by the lower court and we are first met by the question whether the petition for the writ alleges sufficient facts to disclose error and justify the issuance of the writ. B. & C. Comp. § 596, provides that the writ shall be allowed by the court of the county wherein the decision or determination sought to be reviewed was made upon the petition of the plaintiff describing the same with convenient certainty and setting forth the errors relied on. So it necessarily must contain a sufficient statement of the facts, when taken as true, to disclose to the court that the plaintiff is entitled to the writ. Mr. Justice Wolverton, in Southern Oregon Co. v. Coos County, 30 Or. 250, 47 P. 852, holds that the petition should state such facts as would show prima facie by an inspection of it that the inferior court has acted without jurisdiction or has exercised its functions erroneously; and, as in other pleadings, a statement of a conclusion of law is bad, and reference cannot be had to the return to supply omissions in a petition. Mr. Chief Justice Moore, in Fisher v. Union County, 43 Or. 223, 72 P. 797, also holds that the petition must state the facts from an inspection of which the court can determine whether an injury has been done the petitioner; and the averment of conclusions of law are insufficient as a basis for any relief. Therefore, if the petition does not state such facts as disclose error in the rulings of the lower court, then the merits of the case cannot be...