74 P. 396 | Or. | 1903
after stating the facts as above, delivered the opinion of the court.
The plaintiff’s counsel insist that no provision is made by statute whereby a landlord can appeal from an erroneous judgment rendered against him in a justice’s court in an action of forcible entry or unlawful detainer, and, as a writ of review is the only remedy by which such a judgment can be corrected, an error was committed by the trial court in dismissing the proceedings. It is maintained by defendant’s counsel, however, that the writ of review, in this State, is substantially the same as the common-law writ of certiorari; that proceedings of this char
The statute prescribing the process in this mode of procedure is as follows: “The writ heretofore known as the writ of certiorari is known in this code as the writ of review ”: B. & C. Comp. § 594. The writ of review bears the same relation to our system of civil procedure that the writ of certiorari sustained to the common law (Burnett v. Douglas County, 4 Or. 388), the name only of the latter having been changed by statute (Canyonville, etc. Road Co. v. Douglas County, 5 Or. 280), and, like the ancient mode of procedure, the modern writ merely brings up the record: Barton v. LaGrande, 17 Or. 577 (22 Pac. 111). In Dayton v. Board of Equalization, 33 Or. 131 (50 Pac. 1009), Mr. Justice Wolverton, in speaking of the character of the writ of review, and the office which it performs, says: “It is substantially the common-law remedy by certiorari, which was invoked for the purpose of having the entire record of the inferior tribunal brought up for inspection, to determine whether it had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed according to the essential requirements of the law.” In Garnsey v. County Court, 33 Or. 201 (54 Pac. 539, 1089), Mr. Justice Bean, in speaking of the writ of review, says: “ Its object, under the statute, as at common law, is to keep inferior courts and tribunals within the bounds of their jurisdiction, and compel them to proceed regularly in the disposition of matters brought before them for determination; but it cannot be used as a substitute for an appeal, nor does it lie to correct mere errors in the exercise of a rightful jurisdiction, or to inquire whether the rulings of the inferior
Though the writ of review and the right of appeal are concurrent (B. & C. Comp. § 597.; Hill v. State, 23 Or. 446, 32 Pac. 160; Kirkwood v. Washington County, 32 Or. 568, 52 Pac. 568; Fanning v. Gilliland, 37 Or. 369, 61 Pac. 636, 62 Pac. 209, 82 Am. St. Rep. 758), these remedies are dissimilar, and certiorari cannot be used to subserve the purposes of an appeal: Harris, Certiorari, § 44; Garnsey v. County Court, 33 Or. 201, (54 Pac. 539). An appeal from a judgment given in a justice’s court to the circuit court having been perfected, the cause is tried anew in the latter court, as if originally commenced therein : B. & C. Comp. § 2246. A writ of review will not bring up the evidence, but only the record, from an inspection of which jurisdiction and correctness of the judgment are to be determined : Road Co. v. Douglas County, 6 Or. 299; Poppleton v. Yamhill County, 8 Or. 334; Smith v. City of Portland, 25 Or. 297 (35 Pac. 665). Under the statute now in force, a party dissatisfied with a judgment rendered against him in a justice’s court has a choice of remedies, and may either appeal from the judgment, or have it reviewed; but having elected his mode of procedure, he is bound by the practice applicable thereto: Feller v. Feller, 40 Or. 73 (66 Pac. 468). In those States which have not materially departed from the doctrine of the common law in respect to the remedy of certiorari, the rule prevails that the writ will not lie to correct errors in the exercise of a rightful jurisdiction, the causes never being tried de novo on the merits: 4 Ency. Pl. & Pr. 98 ; Harris, Certiorari, § 2. “An error of judgment on the part of a judge or officer, either as to the facts or to the law of the case,” says Mr. Spelling in his work on Extraordinary Relief (section 1891), “could not be inquired into and corrected.”
The other sections of the statute considered applicable to the case at bar are as follows : “ The following shall be deemed cases of unlawful holding by force within the meaning of this chapter : (1) When the tenant or person in possession' of any premises shall fail or refuse to pay any rent due on the lease or agreement under which he holds, or deliver up the possession of said premises for ten days after demand made in writing for such possession ; (2) when, after a notice to quit as provided in this chapter, any person shall continue in the possession of any premises at the expiration of the time limited in the lease or agreement under which such person holds, or contrary to any condition or covenant thereof, or without any written lease or agreement therefor ”: B. & C. Comp. § 5755. “An action for the recovery of the possession of the premises may be maintained in the cases specified in subdivision 2 of section 5755 when the notice to quit has been served upon the tenant or person in possession for the period of ten days before the commencement thereof, unless the leasing or occupation is for the purpose of farming or agriculture, in which case such notice must be so served for the period of ninety days before commencement of such action”: B. & 0. Comp. § 5757. “The service of a notice to quit upon a tenant or person in possession does not authorize an action to be maintained against him for the possession of the premises before the expiration of any period for which such tenant or person may have paid the rent of such premises in advance”: B. & C. Comp. § 5758.
It will be remembered that the original action was commenced April 21, 1903, and the reply having stated that a notice was served upon Schreckler twelve days prior
We do not deem it necessary to discuss at this time the question whether the right to an appeal from a judgment given in a justice’s court in an action of forcible entry and detainer has been granted, for, if not, the fault lies with, and the remedy must be secured from, the legislative assembly.
The justice’s court had jurisdiction to render the judgment complained of, and, having proceeded in the manner prescribed by law, however erroneous its conclusion may be, it cannot be reviewed ; and, no error having been committed in dismissing the proceedings, the judgment is affirmed. Affirmed.