Woodruff v. Douglas County

• Decision Date: 28 January 1889
• Parties: WOODRUFF et al. v. DOUGLAS COUNTY.
• Court: Oregon Supreme Court

21 P. 49

17 Or. 314

WOODRUFF et al. v. DOUGLAS COUNTY.

Supreme Court of Oregon

January 28, 1889

Appeal from circuit court, Douglas county.

Petition by Martha Woodruff and others for the laying out of a county road. A petition for rehearing was denied on March 14, 1889.

(Syllabus by the Court.)

In an appeal from a judgment of the circuit court to the supreme court, rendered upon a writ of review issued out of the former court, the appellant is required to specify in his not ice of appeal the grounds of error, with reasonable certainty, upon which he intends to rely upon the appeal; but his failure to do so will not preclude the supreme court from examining the transcript, and reversing the judgment, if it should find that the circuit court had no jurisdiction to render it.

Specifying the grounds of error in such a case not essential to give jurisdiction to hear the appeal, but is required in order to inform the adverse party as to the points he will be expected to controvert in the appellate court.

In order to confer upon a county court jurisdiction to lay out a county road, application by petition must be made to the court, signed by at least house-holders of the county where the road is laid out, which petition shall specify the place of beginning, the intermediate points, if any, and the place of its termination, so definitely and certainly that a person of ordinary intelligence need not mistake their location.

Where in an application to a county court to lay out a county road the terminal point of intersection of the last course with the present C.V. and R.C. road, between the residence of C.L.P. and O.B. held, that it did not answer the requirements of the statute in that particular, and consequently did not vest the county court with jurisdiction to lay out and establish the proposed road.

Held, also, that the circuit court, upon writ of review to review the proceedings in laying out and locating the said road under the said application and petition, had no jurisdiction to adjudge that said writ should be dismissed and said proceeding should be in all things affirmed.

J.C. Fullerton, for appellants.

J.W. Hamilton and W.R. Willis, for respondent.

THAYER C.J.

This appeal is from a judgment of said circuit court, affirming proceedings had in the county court for said county in locating a county road. The appellants claimed that the said county court had no jurisdiction of the said proceedings, and sought to have them annulled by the said circuit court, by a writ of review, duly issued and returned to the latter court; but that court found that the writ should be dismissed, and the said proceedings should be in all things affirmed, from which decision this appeal was taken. The appellant is met at the threshold of this court by an objection that this notice of appeal is insufficient to confer jurisdiction upon the court to try any alleged errors in the trial of the case in the said circuit court. Respondent claims that the notice of appeal should have specified the grounds of error, with reasonable certainty, upon which the appellant intended to rely on the appeal. The Civil Code, § 591, provides that an appeal from the judgment of the circuit court, on review, may be taken to the supreme court in like manner and with like effect as from a judgment of such circuit court in an action, and section 537, Civil Code, requires that the appellant shall cause a notice to be served on the adverse party, and file the original, with proof of service indorsed thereon, with the clerk where the judgment is entered, and that such notice, in case the judgment be one rendered in an action at law, shall specify the grounds of error with reasonable certainty, upon which the appellant intends to rely upon the appeal. These two provisions, taken together, would probably require that the notice of appeal to the supreme court, from a judgment of the circuit court on review, should specify the grounds of error upon which the appellant intended to rely on the appeal, although there is much less reason for requiring it in such a case than in an appeal from a judgment in an action, as the petition for the writ of review is required to set forth the errors alleged to have been committed, and the appeal to the supreme court from the judgment rendered on review is really nothing more than a new trial of the questions determined in the circuit court. The object in requiring the notice of appeal to specify the grounds of error upon which the appellant intends to rely, on the appeal, evidently was for the purpose of informing the adverse party as to the points which he would be required to controvert in the appellate court. But what grounds of error an appellant can specify in a notice of appeal from a judgment on review, more than that the judgment is erroneous, I am unable to comprehend. I cannot see that he can specify anything as error further than that the court had decided wrong. The alleged errors set forth in the petition for the writ are the only matters which this court can ordinarily consider, and there would certainly be no necessity of pointing them out, as they are already a part of the record. All that can possibly be required in such a case is a specification of what was known in the assignment of errors upon a writ of error, as common error in law, as distinguished from special error. The common errors were that the declarations were insufficient in law to maintain the action, or that the judgment was rendered for the plaintiff instead of the defendant, or vice versa. 2 Tidd, Pr. 1169. But whether it is essential to specify any error whatever in order to authorize this court to examine the transcript and to determine as to the judgment being erroneous, is very questionable. That a notice of appeal which fails to specify the ground of error relied upon is a nullity, I am very much inclined to doubt. Such might be the result if no error whatever, except those actually specified in the notice of appeal, could be considered in this court; but its rulings have been otherwise. It has repeatedly held that where the error goes to the jurisdiction of the court, and it appears from the face of the record, the court is bound to take judicial notice of it, although not specified, or any mention made of it in the argument; that, if the want of jurisdiction appeared to the judge before whom the proceeding was had, at any stage, he would, of his own motion, have dismissed the cause, and this court, on appeal, stands in the same position. State v. McKinnon, 8 Or. 487. The same rule has been maintained where the complaint does not state facts sufficient to constitute a cause of action or suit. McKay v. Freeman, 6 Or. 453. If this court is not precluded from considering every ground of error which the notice of appeal from a judgment of the circuit court in an action at law fails to specify as such, then I infer that such specification is not essential to confer jurisdiction upon it to hear the appeal. No one can consistently, it seems to me, contend that the court would have the right to consider a question of jurisdiction, or the sufficiency of the complaint, because the appellant specified in his notice of appeal some other ground of error when it would not have it if such ground of error were not specified. To hold that the court has jurisdiction to consider the grounds of error referred to, although not specified in the notice of appeal, but has it because the notice of appeal specifies some other grounds of error, however untenable such other ground may be, would be adhering too strongly to a nicety.

There is nothing in the language of the Code that I can discover which requires a specification of the grounds of error in the notice of appeal as a condition upon which the appeal is taken, although it is mandatory in its character. Such a specification is somewhat analogous to the assignment of errors upon a writ of error. The two modes of proceeding are very...