66 P. 468 | Or. | 1901
delivered the opinion of the court.
The defendant instituted an action in the Justice’s Court for Woodburn District, Marion County, Oregon, against plaintiff herein and W. F. Feller and H. Bock, alleging that she was the owner and entitled to the possession of “one cow, Holstein breed, black in color, with white spots, aged about nine years, and named ‘Blaekey,’ of the value of $45,” and that the defendants in that action unlawfully took and detained said cow from her possession. A trial was had in the justice’s court, and the following verdict returned: “We, the jury duly impaneled and sworn to try the within cause, do find that the plaintiff, Angie L. Feller, is entitled to the immediate possession of one cow, Holstein breed, black in color, with white spots, age about nine (9) years, and named.‘Blaekey,’ as described in the complaint, and also entitled to damages in the sum of ($42) forty-two dollars.” Upon this verdict a judgment was rendered November 21, 1899, from which they attempted to appeal to the circuit court, by serving and filing a notice thereof in due time, with a proper undertaking; and the justice’s docket shows that the appeal was allowed, and a stay of proceedings ordered. On December 16 a transcript on appeal was certified and delivered to the attorneys for the defendants in the justice’s action. On January 15, 1900, Francis L. Feller, as plaintiff, filed a petition in the circuit court for a writ of review, which being duly issued and served, the justice of the peace in obedience thereto returned the writ to the circuit court on the twenty-ninth of the same month, with a
Two questions are involved in the controversy: (1) Whether a review will lie to bring up the record of a justice’s court after an appeal has been regularly taken, the proceedings therein stayed, and a transcript certified and delivered to the appellant, but not filed in the circuit court; and (2) was the verdict of the jury sufficient upon which to base the judgment rendered?
It would seem not to have been the purpose of either of these acts, by the process thereby provided and established for removing a cause to the circuit court, to break up or suspend the judgment of the lower court; and such judgment can only be stayed in. the one ease by the undertaking, which operates as a supersedeas, and in the other by the direction of the circuit court. This is analogous to the practice and procedure as it pertains to appeals from the circuit court to the supreme court: Day v. Holland, 15 Or. 464 (15 Pac. 855); Nessley v. Ladd, 30 Or. 564 (48 Pac. 420). In this connection we may state a fact of which the court takes judicial knowledge, namely, that the first term of the circuit court for Marion
The statute pertaining to the writ of review, prior to the amendment of 1899, now in force, provided that the writ should be allowed in all cases “where there is no appeal, or other plain, speedy or adequate remedy,” touching the effect of which, as affording a remedy concurrent with the right of appeal, there have been conflicting adjudications in this court, a summary of which is given by Mr. Justice Strahan in Ramsey v. Pettingill, 14 Or. 207, 208 (12 Pac. 439). He says: “One case decided that appeal and review were concurrent remedies: Schirott v. Phillippi, 3 Or. 484, following Blanchard v. Bennett, 1 Or. 329. In Evans v. Christian, 4 Or. 375, this court held that appeal and review were not concurrent remedies, and to that extent overruled the preceding cases on that subject. In the latter case it was further said: ‘We do
The only one which we may now consider is whether, after the appellant has filed the notice of appeal and undertaking, and secured a stay of proceedings in the justice’s court, and an issuance and certification of the transcript, he can rest there, and, without filing such transcript in the circuit court, sue out a writ of review, and have it heard and determined, notwithstanding he has initiated the appeal. It seems clear that as the circuit court has not acquired jurisdiction of the appeal,
It follows that the judgment of the court below should be affirmed, and it is so ordered. Affirmed.