Kirkwood v. Washington County

• Decision Date: 14 March 1898
• Citation: 32 Or. 568,52 P. 568
• Parties: KIRKWOOD v. WASHINGTON COUNTY et al.
• Court: Oregon Supreme Court

52 P. 568

32 Or. 568

KIRKWOOD v. WASHINGTON COUNTY et al.

Supreme Court of Oregon

March 14, 1898

Appeal from circuit court, Washington county; T.A. McBride, Judge.

Proceeding by Washington county and others against George Kirkwood for the collection of a delinquent tax. An order was made directing Kirkwood to apply certain property in payment of the tax, and he sued out a writ of review to the circuit court, which vacated said order, and the county and others appeal. Affirmed.

W.N Barrett, for appellants.

S.B. Huston, for respondent.

BEAN J.

This is an appeal from a judgment of the circuit court of Washington county vacating, on writ of review, an order of the county judge of such county requiring the petitioner to apply certain property in satisfaction of delinquent taxes charged against him for the year 1894. The facts are that on July 1 1895, the clerk of Washington county prepared and delivered to the sheriff the delinquent tax list for the year 1894 with a warrant in due form attached thereto, and the sheriff being unable to collect the tax charged thereon to Kirkwood, made and filed, on October 3, 1895, an affidavit in the county court to the effect that Kirkwood had property liable to seizure under the delinquent tax warrant, which he refused to apply to the satisfaction thereof, in pursuance of which the county judge ordered and directed him to appear at a time fixed, and answer under oath concerning the same. At the time designated, the petitioner appeared, and moved to dismiss the proceedings, for the reasons (1) that the court had no jurisdiction; (2) that no sufficient affidavit had been filed upon which to base the order for his examination; (3) that the warrant for the collection of the delinquent taxes is void, because not issued within the time required by law; and (4) that, if valid when issued, it had become functus officio at the time these proceedings were instituted. This motion was overruled, and the court proceeded to the examination of the petitioner, and found and adjudged that he had property liable to seizure under the tax warrant, and thereupon ordered and directed him to apply the same in satisfaction of the delinquent taxes charged against him, and costs, within 10 days from the date of the order. From this order, Kirkwood sued out a writ of review to the circuit court, whereupon the county filed a motion to dismiss, because it was not the proper remedy. This motion was denied, and an order entered vacating the proceedings of the county court, and hence this appeal.

It is claimed by the defendant county that a writ of review will not lie from the proceedings of a county court sitting as a law court. In support of this position, reliance is had upon section 902 of the Code, which makes the provisions of chapter 6 relating to appeals applicable to the judgments and decisions of the county court in all cases except decisions given or made in the transaction of county business, and under which it was held in Broback v. Huff, 11 Or. 395, 4 P. 1130, that a writ of review will not lie to bring up for review the records of a county court in a civil action. But since that decision the statute in reference to the writ of review has been amended by providing that it shall be concurrent with the right of appeal (Laws 1889, p. 135); and, as the law now stands, it is clear, as said by Mr.

Chief Justice Lord in Hill v. State, 23 Or. 446, 32 P. 160 "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...