15 Or. 596 | Or. | 1888
A writ of review was sued out of tne Circuit Court of Marion County, directed to the justice of the peace of Stayton precinct, requiring him to certify to the Circuit Court of said county the record in the case of Follansby v. Kearns, lately decided in said Justice’s Court. In obedience to said writ, the justice certified said proceedings to the Circuit Court. At the next term of said court, the present -appellant appeared therein, and moved to dismiss the writ of review, and to remand the cause to said Justice’s Court, for the reason, amongst other things, that the plaintiff herein had a plain, speedy, and adequate remedy for the errors complained of, by an appeal from the justice’s judgment; but this motion was overruled, and upon looking into the record the Circuit Court reversed the judgment of the justice. From this judgment of the Circuit Court this appeal is taken.
It appears from the return of the justice annexed to the writ that J. L. Follansby, the appellant herein, commenced an action in the Justice’s Court of Stayton precinct against John Kearns,
We do not care to restate the law further than to refer to what was said in that case. This was not a case where judgment was given for want of an answer. A demurrer is an answer within the meaning of section 2117 of Hill’s Code. Section 536 of Hill’s Code contains substantially the same provision as section 2117 as to judgments for want of an answer being non-appealable, and yet it is the constant practice, and has been since the adoption of the Code, to appeal to this court from the ruling of the lower court on a demurrer. And it has never even been suggested here that such a judgment was given for want of an answer. Ho reason is perceived why these two provisions, though relating to appeals from different courts, should not on this point receive the same construction. Long v. Sharp, 5 Or. 438, was cited by the respondent as being contrary to what is here said. In that case an answer had been filed in the cause pending before a justice, which was stricken out on motion, and a judgment then given against the defendant “ for want of an answer,” and it was
The judgment of the court below will be reversed, and the cause remanded with directions to dismiss the writ.