Bitting v. Douglas County

33 P. 981, 24 Or. 406, 1893 Ore. LEXIS 134

• Court: Oregon Supreme Court
• Decided: July 24, 1893
• Status: Published

Opinion

Mr. Justice Moore

delivered the opinion of the court:

In the examination of this record we shall only consider the sixth and seventh assignments of error, as we deem them decisive of the case. In proceedings to establish a county road, the petition is the complaint, and the notice is the process which gives the county court jurisdiction : Jones v. Marion County, 4 Or. 46. The advertisement is the process, and the posting in public places is the service: Minard v. Douglas County, 9 Or. 206. In King v. Benton County, 10 Or. 512, Waldo, J., says: “It is common sense that the notice should give full information of the intended proceeding.” In Vedder v. Marion County, 22 Or. 264 (29 Pac. 619), the strictness of the rule adopted in the cases of Minard v. Douglas County, and King v. Benton County, is somewhat modified, but it was never intended to dispense with any of those requirements necessary to confer jurisdiction. The notice to establish a county road is served by posting at the place of holding the county court, and also in three public places in the vicinity of the proposed road: Hill’s Code, § 4063. Such service is constructive, and in all cases rests upon the presumption that the party affected thereby has seen the notice: Wade on Notice, § 1029. It must on its face be so specific as to inform the householder inspecting it of the proceedings contemplated, and one of the principal objects in requiring such notice is to inform interested parties of the time and place, when and where his property will be affected by some proceeding. It should name the day, with reasonable certainty, upon which the defendant so served with process is required to appear and answer: Idem, § 1063. The fact that information of the intended proceeding has actually come to the knowledge of the defendant, cannot aid a defective notice: Idem, § 1030. The party affected by the notice need not seek other information to aid the defect or supply the omission of any material fact which it should contain. The notice in the case at bar is as follows: “ Notice is hereby given that a petition will be presented to the county court of Douglas County at its next regular term for a change in a road now located, and described as follows.” This notice is properly signed by the petitioners, but contains no date whatever. Could a person whose land would be affected by the location of a county road tell when the petition would be presented to the county court from reading such a notice? The law requires that the notice shall be advertised by posting thirty days previous to the presentation of the petition: Code, § 4063. No one could tell from the notice at what term of the court the petition would be presented. It is silent as to this necessary requirement, and did not give to the county court any jurisdiction to entertain the petition, and hence any action taken thereon is void. There are several other questions presented by the record, but since the county court never acquired jurisdiction, their examination would be useless. Affirmed.