McAnish v. Grant

• Decision Date: 30 November 1903
• Citation: 44 Or. 57,74 P. 396
• Parties: McANISH v. GRANT, Justice of the Peace, et al.
• Court: Oregon Supreme Court

74 P. 396

44 Or. 57

McANISH v. GRANT, Justice of the Peace, et al.

Supreme Court of Oregon

November 30, 1903

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Writ of review bye Stewart McAnish against William Grant, justice of the peace, and others. From a judgment dismissing the proceedings, plaintiff appeals. Affirmed.

This is a special proceeding to review the judgment of an inferior court. The transcript shows that on April 21, 1903, the plaintiff commenced an action in a justice's court of Union county, alleging that the defendant Earnest Schreckler was in the possession of certain real property in that county, which he unlawfully held with force, and that plaintiff was entitled to the possession thereof, but Schreckler refused to deliver the same to him. The answer denied the material allegations of the complaint, and for a further defense averred that about October 1, 1901, the plaintiff, by a written contract, demised to Schreckler the lands described in the complaint, for the term of three years, "for farming and agricultural purposes," at a rental of $500 per annum, payable yearly in advance. A copy of the lease is made a part of the answer, and provides that Schreckler should till the land in a good and husband-like manner; that he would not commit or permit any waste; that upon the expiration of the lease, or if for any cause it should be determined prior thereto, he would surrender the premises to the plaintiff peaceably; that he would pay as rent $500 annually in advance; that he would plow and sow to grain as much as possible of a certain 20 acres of the demised premises during the first year of the term, and, if such tract was deemed productive grain land, he would during the term continue to cultivate it for that purpose, but, if it should be concluded unprofitable therefor, he would sow grass thereon; that he would, as rapidly as possible, resow such parts of the meadow as might be necessary, the plaintiff furnishing seed therefor; and that he would keep the fences on the place in repair, plaintiff supplying the material for that purpose. The lease contains the following condition "Should the said party of the second part [Schreckler] fail, neglect or refuse to pay the rents above specified at the times mentioned, or to perform the conditions herein required of him to be performed, then the said party of the first part [the plaintiff] may at any time while such default continues declare this lease null and void and may re-enter and repossess himself of the said premises as of his former estate, forcibly if necessary, without in any manner being deemed guilty of trespass." The answer further alleges that the possession of the demised premises was delivered to Schreckler, who holds the same under the lease, and has paid the rent therefor in full to October 1, 1903, and fully performed all the conditions thereof upon his part, except such as were waived or modified by plaintiff, particularly specifying the same; that plaintiff had neglected and refused to comply with the conditions agreed to be performed by him and failed to serve Schreckler with notice of his intention to declare the lease null and void, or to re-enter and repossess himself of any part of the lands, and by reason thereof Schreckler was entitled to remain in the peaceful possession of the whole of the premises. A motion to strike out parts of the answer having been denied, a reply was filed, denying that $500 per year was the entire rent, or that it had been paid in full to October 1, 1903, but not putting in issue the averment that the money consideration thereof had been paid to that time, or that the premises were leased for farming and agricultural purposes. Schreckler thereupon moved the court for a judgment on the pleadings on the grounds that it affirmatively appeared therefrom that the rent had been paid to October 1, 1903, and that the reply disclosed that no notice to quit had been given until April 9th of that year. This motion having been sustained, judgment was rendered against plaintiff for the costs and disbursements; the court reciting that it appeared upon the face of the pleadings that the rent had been paid to October 1, 1903, and that plaintiff had not served Schreckler with a notice to quit the premises 90 days before the commencement of the action. The plaintiff, to set aside such judgment filed a petition for a writ of review, in which the defendant William Grant, the justice of the peace who tried the action was made a party; and, the writ having been issued, the pleadings, motions, and judgment in the justice's court were certified up to the circuit court for Union county, which dismissed the proceedings, and from the latter judgment the plaintiff appeals to this court.

C.H. Finn, for appellant.

Wm. Ramsey, for respondents.

MOORE C.J. (after stating the facts).

The plaintiff's counsel insist that no provision is made by statute whereby a landlord can appeal from an erroneous judgment rendered against him in a justice's court in an action of forcible entry or unlawful detainer, and, as a writ of review is the only remedy by which such a judgment can be corrected, an error was committed by the trial court in dismissing the proceedings. It is maintained by defendant's counsel, however, that the writ of review, in this state, is substantially the same as the common-law writ of certiorari; that proceedings of this character were not designed to correct errors committed in the exercise of the power delegated; and that the only questions to be considered in the case at bar are whether or not the justice's court had jurisdiction to render the judgment complained of, and, if so, did it proceed in the manner prescribed by law?

The statute prescribing the process in this mode of procedure is as follows: "The writ heretofore known as the writ of certiorari is known in this Code as the writ of review." B. & C. Comp. § 594. The writ of review bears the same relation to our system of civil procedure that the writ of certiorari sustained to the common law ( Burnett v Douglas County, 4 Or. 388), the name only of the latter having been changed by statute ( Canyonville, etc., Road Co. v. Douglas County, 5 Or. 280), and, like the ancient mode of procedure, the modern writ merely brings up the record ( Barton v. La Grande, 17 Or. 577, 22 P. 111). In Dayton v. Board of Equalization, 33 Or. 131, 50 P. 1009, Mr. Justice Wolverton, in speaking of the character of the writ of review, and the office which it performs, says: "It is substantially the common-law remedy by certiorari, which was invoked for the purpose of having the entire record of the inferior tribunal brought up for inspection, to determine whether it had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed according to the...