Kinney v. City of Astoria

113 P. 21 | Or. | 1911

Mr. Justice Burnett

delivered the opinion of the court.

1. Section 604, L. O. L., provides:

“The writ shall be allowed by the circuit court or judge thereof, or by the county court or judge of the county wherein the decision or determination sought to be reviewed was made, upon the petition of the plaintiff, describing the same with convenient certainty, and setting forth the errors alleged to have been committed therein.”

We deem it unnecessary to consider more than the sufficiency of the petition. When a writ of review is granted, the tribunal granting it, in effect, says to the petitioner ex parte:

“The court will by its writ call for the proceedings you have described, and, when brought up, if it appears to be erroneous in the manner you have alleged, such disposition will be made of it as the law shall direct.”

It is incumbent upon the petitioner, therefore, to describe the proceedings of which he complains with sufficient certainty and detail to enable the court upon reading the petition to determine in the first instance, so far as it may upon an ex parte application, that the proceeding is erroneous as claimed.

2. The court may in the first instance issue the writ without being fully advised, yet, if on hearing the defendant’s motion to quash the writ it shall appear that the same was issued unadvisedly, it is the duty of the court even then to dismiss the writ.

3. The petition in this case does not state any fact or sufficiently describe any proceeding whereby the court can say prima facie, that the plaintiff has been injured. Indeed, the petition states that the city adopted a report of pretended viewers of a proposed street or alley, but it does not give the contents of the report so that a court can determine wherein the plaintiff was injured. For all that appears on the face of the petition, the viewers may have reported in favor of abandoning the attempt to lay out on alley. The petition should state enough in describing the proceedings to show the court that the city had done something prejudicial to the rights of the plaintiff. It is not sufficient to say that the city attempted to take steps to lay out an alley. The proceedings of the city should be detailed far enough to enable the court to draw the conclusion that it had attempted to take steps to lay out an alley, if such an attempt is inimical to plaintiff’s rights. In brief, the petition contains nothing except conclusions of law and alleges no fact whereby the court can say that the plaintiff’s rights were infringed.

4. The subsequent proceedings cannot rise higher than its source, which is the petition for the writ. The court cannot consider any errors except those disclosed by the petition. There being nothing in the petition whereby the court can determine whether the assignments of error are well founded or not, the petition is clearly insufficient to authorize issuance of the writ: Fisher v. Union County, 43 Or. 223 (72 Pac. 797); Holmes v. Cole, 51 Or. 483 (94 Pac. 964); Raper v. Dunn, 53 Or. 203 (99 Pac. 889).

The circuit court committed no error in finally dismissing the writ.

Its action should be affirmed, and it is so ordered.

Affirmed.