Christensen v. Lane County

175 P. 845 | Or. | 1918

BENSON, J.

The arguments of counsel are largely directed to a discussion of whether this is a direct or a collateral attack upon the proceedings of the County Court. There is probably no legal problem which presents so many confusing efforts by the authorities to elucidate and simplify the questions presented under the conditions of the case at bar, we think the rule is fairly stated by an eminent authority thus:

“In fact the writer is of the opinion (though not conceded by many courts) that any attack which has for its object the setting aside and vacating of a judgment is a direct attack, whether in the same or an independent proceedings. Any attack the object and purpose of which is to avoid the judgment, leaving it to stand as the judgment of the court which pronounced it, is a collateral attack. Thus an action in equity to vacate and set aside a judgment is a direct attack; it directly attacks the judgment. An action to restrain proceedings under the judgment, or to prevent the enforcement thereof is a collateral attack”: 1 Bailey on Jurisdiction, 140.

1. Tested thus, the complaint which we are considering is a direct attack. But as we view the matter, the nature of the attack is of small importance in any event. The complaint alleges that “no notice was ever had, filed or presented containing the names of twelve freeholders as petitioners for said road,” and “that the County Court neither had nor took any proof that the persons whose names were subscribed to the pretended notice were freeholders and qualified to petition for said or any road.”

2. The County Court acquires jurisdiction in proceedings to establish highways by means of a petition signed by at least twelve freeholders residing in the road district where the road is to be laid out: Section 6279, L. O. L. This must be followed by,posting a notice of such petition at the place of holding County Court, and in three public places in the vicinity of the road, and satisfactory proof of such posting. This court has further held that such notices must be signed by at least twelve freeholders who are signers of the petition: Minard v. Douglas County, 9 Or. 206; King v. Benton County, 10 Or. 512. We therefore conclude that the complaint sufficiently charges that the County Court lacked jurisdiction to make the order establishing the highway.

3. As to the remaining allegations of the complaint, it may be said that they seek to raise issues which are res judicata and cannot be entertained by a court of equity unless the pleading discloses something more than the apparent inequity of the judgment which is attacked, such as accident, mistake, surprise or fraud: 15 R. C. L. 751. There is here no averment of any facts disclosing fraud, accident or mistake. The only allegation upon which plaintiff relies is, that being unfamiliar with the methods employed in establishing roads, she had her husband inquire of the county judge as to what had been, or would be, done in the matter, and thereby was assured that she would be informed as to any action taken therein; that she relied upon such assurance and consequently failed to learn that her claim for damages had been ignored until the time in which an appeal might have been taken had expired. This statement amounts to no more than a confession of negligence upon the part of the plaintiff, which affords no ground for the interposition of a court of equity.

It follows that the only issuable controversy in the complaint relates to the jurisdiction of the County Court in the road proceedings, and as to that the pleading is sufficient. The demurrer should have been overruled. The decree is reversed and the cause remanded for further proceedings not inconsistent herewith.

Reversed and Remanded. Rehearing Denied.

McBride, C. J., and Burnett and Johns, JJ., concur.