State ex rel. Burke v. Beveridge

• Decision Date: 29 July 1924
• Parties: STATE EX REL. BURKE v. BEVERIDGE, COUNTY CLERK.
• Court: Oregon Supreme Court

228 P. 100

112 Or. 19

STATE EX REL. BURKE v. BEVERIDGE, COUNTY CLERK.

Supreme Court of Oregon

July 29, 1924

In Bank.

Mandamus by the State of Oregon, on the relation of Joseph Burke, to compel Joseph W. Beveridge, as County Clerk of the County of Multnomah, to issue writ of execution. Writ refused, and petition dismissed.

This is an original action in this court for a writ of mandamus to compel the defendant, Joseph W. Beveridge, county clerk of Multnomah county, to issue a writ of execution. The alternative writ states that the defendant, Joseph W Beveridge, is the county clerk of Multnomah county; that the relator as party plaintiff recovered a judgment against Maurice W. Seitz as party defendant in the circuit court of the state of Oregon for Multnomah county for the sum of $7,500 which judgment was entered on the 11th day of April 1924, and then states:

"And it further appearing that the time within which to pray an appeal from said judgment to the Supreme Court of the state of Oregon expired on the 10th day of June, 1924, and that no notice of appeal or undertaking was had or given by or on the part of said Maurice W. Seitz, and that the time for appeal from said judgment has expired.

"And it further appearing that heretofore and on the 7th day of June, 1924, the circuit court of the state of Oregon for Multnomah county, acting through the Honorable Robert G Morrow, judge, entered an order vacating said judgment which order was entered after the time allowed by statute in which to enter said order, and the court had no jurisdiction to enter said order."

Said writ further states that the relator demanded of said county clerk a writ of execution which the said county clerk denied and that the power and authority to issue said writ of execution was vested in the said county clerk. Then follows an appropriate prayer. To the said alternative writ the defendant demurs: (1) On the ground that the relator has a plain, speedy, and adequate remedy at law on appeal from the order vacating the judgment; (2) that said writ does not state or contain facts sufficient to entitle relator to the relief demanded.

Hugh Montgomery and Albert B. Ridgway, both of Portland (Ridgway, Johnson & Montgomery, of Portland, on the brief), for plaintiff.

John F. Logan and Robert F. Maguire, both of Portland (Winter & Maguire, of Portland, on the brief), for defendant.

COSHOW, J. (after stating the facts as above).

It has been definitely settled in this state that in mandamus proceedings the alternative writ and the demurrer thereto, so far as this case is concerned, constitute the entire record to be considered by the court. This court cannot look to the petition for the alternative writ for the purpose of enlarging or supporting the writ. Section 618 to 620, Or. L .; Dryden v. Daly, 89 Or. 218, 225, 173 P. 667; Elliott v. Oliver, 22 Or. 44, 29 P. 1; McLeod v. Scott, 21 Or. 94, 26 P. 1060, 29 P. 1.

Pleadings when tested by demurrer will be construed most strongly against the pleader. Loveland v. Warner, 103 Or. 638, 666, 204 P. 622, 206 P. 298; Interior Warehouse Co. v. Dunn, 80 Or. 528, 536, 537, 157 P. 806, and cases there cited; State v. Malheur County Court, 46 Or. 519, 81 P. 368.

The demurrer to the alternative writ admits only the facts stated in the writ, not conclusions of law. State v. Williams, 45 Or. 314, 330, 77 P. 965, 67 L. R. A. 167; O'Hara v. Parker, 27 Or. 156, 166, 39 P. 1004; gshore Printing Co. v. Howell,

26 Or. 527, 535, 536, 38 P. 547, 28 L. R. A. 464, 46 Am. St. Rep. 640.

Tested by this rule, the statements in the alternative writ "which order was entered after the time allowed by statute in which to enter said order, and the court had no jurisdiction to enter...