Ramsey v. Pettingill

• Decision Date: 29 November 1886
• Citation: 14 Or. 207,12 P. 439
• Parties: RAMSEY v. PETTINGILL.
• Court: Oregon Supreme Court

12 P. 439

14 Or. 207

RAMSEY v. PETTINGILL.

Supreme Court of Oregon

November 29, 1886

December 13, 1886

Appeal from the judgment of the circuit court, Josephine county Oregon, dismissing the writ of review, sued out by appellant to determine the regularity of a judgment rendered against him, and in favor of the respondent, in the justice's court for Wolf Creek precinct, in said county. The writ of review was sued out after the time for appeal had passed.

George H. Burnett, for appellant, Ramsey.

W.H Holmes and B.N. Hayden, for respondent, Pettingill.

STRAHAN J.

The Civil Code, § 575, provides: "The writ shall be allowed in all cases where there is no appeal, or other plain speedy, or adequate remedy, or where the inferior court, officer, or tribunal, in the exercise of judicial functions, appears to have exercised such functions erroneously, or to have exceeded its or his jurisdiction, to the injury of some substantial right of the plaintiff, and not otherwise."

In construing this section of the Code, the course of judicial opinion has not been uniform in this state. One case decided that appeal and review were concurrent remedies. Schirott v. Phillippi, 3 Or. 484; following Blanchard v. Bennett, 1 Or. 329.

In Evans v. Christian, 4 Or. 375, this court held that appeal and review were not concurrent remedies, and, to that extent, overruled the preceding cases on that subject. In that case it was further said: "We do not question the correctness of the decision of the court in Schirott v. Phillippi, so far as it determined the real question in that case. That was that a writ of review might issue in a case (otherwise proper) when the right to an appeal once existed, but had been lost by lapse of time. Miliken v. Huber, 21 Cal. 166, People v. Shepard, 28 Cal. 115."

I have examined both of these cases. Neither of them supports the doctrine stated. The first holds directly the reverse. In that case the court said: "If there was an appeal in this case, the limitation, by statute, of the right to bring that appeal within one year, does not make it, after a year has been suffered to elapse without taking an appeal, a case in which there was no appeal. In any view of the case, therefore, the writ was improperly issued." Further: "If it was the exercise of an appellate jurisdiction, it could not be done, by the proceeding of a writ of certiorari, after the time to exercise the right of appeal had elapsed." Miliken v. Huber, supra. In the second case cited the court appears to have decided that the remedy of the defendant was by appeal, and not by writ of review. The other matter stated in the extract was not referred to or noticed. Subsequent cases in California on the subject show that this court, in Evans v. Christian, supra, misapprehended the real point in Miliken v. Huber, supra. Thus, in Bennett v. Wallace, 43 Cal. 25, it is said: "*** But it is insisted that, as the time limited by statute for the taking of the appeal has been suffered to elapse, the case has thereby become one in which there is no appeal, and is thus brought within the terms of the statute referred to. This view is answered by Miliken v. Huber, 21 Cal. 166. The statute was intended to supply a remedy where none existed in the first instance, and not to supplement one lost through the laches of the party himself." Newman v. Superior Court, 62 Cal. 545.

It thus appears that the rule of practice supposed to have been sanctioned by this court in Evans v. Christian, supra, is not supported by authority, and has never been satisfactory to the bar; and, in my opinion, it is at variance with the true construction of the Code. If an appeal is given by law, then it must be deemed to be an adequate remedy, and a party aggrieved must avail himself of it. He cannot be suffered to neglect this remedy until he has lost his right of appeal, and then claim that he has thereby gained a new remedy by his laches. The law favors the diligent, but we have yet to learn that a litigant ought to be rewarded because of his negligence. In many of the states the right to the writ of certiorari is discretionary. In those cases, if a party once had a right of appeal, certiorari is never allowed unless his failure to appeal is excused or accounted for in some satisfactory manner. State v. County Court of Nodaway Co., 80 Mo. 500; Poe v. Machine-works, 24 W.Va. 517; Payne v. McCabe, 37 Ark. 318; Tilton v. Larimer Co. A. Ass'n, 6 Colo. 288.

I concur in what was said on this subject by the supreme court of Michigan in Galloway v. Corbitt, 52 Mich. 460; S.C. 18 N.W. 218: "This court has heretofore expressed its disapprobation of the practice of taking advantage of technical errors in the proceedings before justices of the peace by the process of certiorari; thus converting what was designed to be a speedy and inexpensive court for the trial of causes into a costly and dilatory tribunal, and often, in its practical operation, through serious delays, defeating the ends of justice; and we are of the opinion that, except for errors which go to the foundation of the action, the proper remedy is by appeal." Erie Pres. Co. v. Witherspoon, 49 Mich. 377; S.C. 13 N.W. 781.

It is proper to say, in this connection, that no attorney or party is responsible for this practice. They did not...