5 Or. 273 | Or. | 1874
By the Court,
It is claimed by counsel for respondent that there is no express authority anywhere given to appeal from the judgments of the recorder of the city of Corvallis, and that § 8 of the charter of said city does not confer the right, and, therefore, the only remedy is by writ of review. If counsel for respondent is correct in this position, then the writ was properly granted in this case.
But we think this position of counsel is untenable. It is declared in § 8 of the charter of the city of Corvallis,
Chapter XI of the General Laws of Oregon, page 477, provides for appeals from justices of the peace in criminal cases, and is a part of the laws referred to in § 8 of said city charter, by which the city recorder is to be governed in his proceedings. .The right of appeal is an important and valuable right, and we cannot think that the Legislature ever contemplated withholding it from the judgments-of the recorder of the city of Corvallis.
The only other question presented in this case is whether the court below had authority to grant the writ of review at the time when it was ordered. The recorder rendered his judgment against Sellers on the 27th day of August, 1873, and three days thereafter the writ of review was issued. Sellers might have appealed from the judgment rendered against him within thirty days from the date of its rendition. This Court held, in Evans v. Christian (4 Or. 375), that the writ of review would not lie in a cause so long as the right of appeal existed, and overruled the dictum in Schirott & Groner v. Phillippi & Coleman (3 Or. 484), that appeal and review were concurrent remedies. We think that the decision of this Court in Evans v. Christian was correct, and that it is decisive of this case.
Judgment reversed.