Blanchard v. Bennett

1 Or. 328 | Or. | 1860

Boise, J.

The errors assigned in this case are—First. That the court erred in overruling the motion of plaintiffs to amend the verification to the original complaint. Second. That the court erred in dismissing the appeal.

As to the first ground of error alleged, we think the matter of allowing amendments to a verification, either in form or substance, rests in the sound discretion of the Circuit Court, and is not subject to the revision of this court.

As to the second ground of error: It is insisted by the plaintiffs, that the verification is sufficient without amendment, and that plaintiffs had a perfect case, which the court was bound to entertain.

In considering the matter, as to whether the court below ought to have entertained jurisdiction of the case, two questions present themselves. First. Does an appeal lie from a judgment of dismissal, and for costs in the County Court? Second. Was there a sufficient verification to the original complaint ? The first question depends on the construction of the various statutes on the subject of appeal. Section 11 of the act organizing the County Court, and defining its jurisdiction, provides, that “ An appeal shall lie from such County Court in all cases to the Circuit Court.” This provision is very comprehensive, and, unless limited by some other statute, would seem clearly to indicate that every decision or judgment of the County Court can be taken to the Circuit Court by appeal. It is said, however, that by the 23d section of the act organizing the County Court, the proceedings of the County Courts are made to conform to the practice in courts of justices of the peace; and that by consequence, a writ of certiorari could have been sued out in this case, and that such was the only proper remedy. This conclusion does not, however, necessarily follow; a certiorari may have been a proper remedy, and so may have been an appeal. The statute regulating appeals from justices of the peace allows appeals in all cases, and is as comprehensive as the statutes above quoted. (See Statutes of Oregon, 1854, page 295, sec. 185.) I therefore conclude, that appeals lie in all cases from the final decisions of justices of the peace, and the remedy by certiorari is concurrent. The other question presented is as to the sufficiency of the verification. I think the form of the verification sufficient, under the 33d section of the act, regulating pleadings in courts of justices of the peace. See Oregon Statutes, 1854, page 271, which I think applicable to proceedings in the County Court. But I think this verification defective in this: that it does not appear, in the certificate of the officer who administered the oath, that he had any authority. This question has been decided by this court in the case of Dennison v. Story, where it was held, that the authority and jurisdiction of the person administering the oath, must affirmatively appear in his certificate.

Judgment affirmed.