Zelig v. Blue Point Oyster Co.

• Decision Date: 12 October 1909
• Citation: 54 Or. 543,104 P. 193
• Parties: ZELIG v. BLUE POINT OYSTER CO. et al.
• Court: Oregon Supreme Court

104 P. 193

54 Or. 543

ZELIG v. BLUE POINT OYSTER CO. et al.

Supreme Court of Oregon

October 12, 1909

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Forcible entry and detainer by M.A. Zelig against the Blue Point Oyster Company and another. Judgment for plaintiff, and defendants appeal, and plaintiff moves to dismiss the appeal. Appeal dismissed.

Claude Strahan, for appellants.

Julius Silverstone, for respondent.

SLATER J.

On December 26, 1908, in an action of forcible entry and detainer brought in the circuit court of Multnomah county under the provisions of chapter 18, tit. 63, Code, as amended by the act of February 23, 1907 (Laws 1907, p. 132) plaintiff obtained a judgment against defendants for the restitution of certain store premises in the city of Portland. Defendants gave an oral notice of appeal, and on December 29, 1908, attempted to perfect their appeal by serving and filing an undertaking as required by section 550 B. & C. Comp., with a provision for stay of proceedings substantially in compliance with the provision of subdivision 2 thereof; but they omitted the giving or filing of an additional undertaking required by section 5754, B. & C. Comp., which section is a part of the original forcible entry and detainer act under which the action was brought.

Plaintiff has moved to dismiss the appeal and to affirm the judgment assigning several reasons therefor. We find it unnecessary, however, to refer to any but the fifth, as that in our opinion is fatal to the jurisdiction of this court, and necessitates the dismissal of the appeal. The fifth assignment refers to the failure to give the additional undertaking. The original forcible entry and detainer act of 1866 (Laws 1866, p. 31) comprehended in sections 5745-5761, inclusive, B. & C. Comp., conferred upon the justices' courts jurisdiction of actions originating thereunder, and provided the particular procedure to be followed. Section 5754 is as follows: "If judgment be rendered against the defendant for the restitution of the real property described in the complaint, or any part thereof, no appeal shall be taken by the defendant from such judgment until he shall, in addition to the undertaking now required by law upon appeal, give an undertaking to the adverse party, with two sureties, who shall justify in like manner as bail upon arrest, for the payment to the plaintiff of twice the rental value of the real property of which restitution shall be adjudged, from the rendition of such judgment until final judgment in the said action, if such judgment shall be affirmed upon appeal." By the act of February 23, 1907 (Laws 1907, p. 132), section 5746, B. & C. Comp., was so amended as to confer concurrent jurisdiction upon the circuit court for the trial of such causes. No other change in the law was made; and the question at once arises whether the special procedure therein provided is to apply and control in the trial of such actions when brought in the circuit court, to the exclusion of the usual procedure there, or is such special procedure to be confined to the justice's court. Actions of forcible entry and detainer are of the nature of special proceedings, and are in most instances not affected by provisions relating to actions generally. But the rules of practice acts and other general laws usually apply where it is not otherwise decreed. 9 Ency.Pl. & Pr. 47. Section 4 of the original act, which is section 5748 of the Code, provided that "such action, except as hereinafter specially provided, shall be conducted in all respects as other actions before justices of the peace." This is an express declaration that the general rules of practice governing actions generally in that court must yield to the special provisions of the act, and, when by subsequent amendment of one of the sections of that act the same jurisdiction was conferred upon the circuit courts, it carried with it the express restrictions contained in other parts controlling the exercise of that power. To arrive at the legislative intent, the whole act must be read with the amendment as if it were a part thereof at the time it was first enacted. An amendment is to be construed as incorporated in the original act, and as a part thereof, and no clause is to be left inoperative. 26 Am. & Eng.Ency.Law, 712; State v. Fisher (Or.) 98 P. 713, 715. It is argued, however, by defendants' counsel that by the amendment of 1907 the expressed intent of the Legislature was merely to confer on the circuit court jurisdiction of the "action to recover possession of premises," quoting the heading of the amended section as it first appears in the Code (B. & C. Comp. § 5746), which heading was not a part of the original act, but was placed there by the compilers as a matter of aid to a quick and easy reference; and it is further...