Burke ex rel. Burke v. Beveridge

228 P. 100, 112 Or. 19, 1924 Ore. LEXIS 32

• Court: Oregon Supreme Court
• Decided: July 29, 1924
• Status: Published

Opinion

COSHOW, J.

It has been definitely settled in this state that in mandamus proceedings the alternative writ and the demurrer thereto, so far as this case is concerned, constitute the entire record to be considered by the court. This court cannot look to the petition for the alternative writ for the purpose of enlarging or supporting the writ: Sections 618-620, Or. L.; Dryden v. Daly, 89 Or. 218, 225 (173 Pac. 667); Elliott y. Oliver, 22 Or. 44 (29 Pac. 1); McLeod v. Scott, 21 Or. 94 (26 Pac. 1060, 29 Pac. 1).

Pleadings when tested by demurrer will be construed most strongly against the pleader: Loveland v. Warner, 103 Or. 638, 666 (204 Pac. 622, 206 Pac. 298); Interior Warehouse Co. v. Dunn, 80 Or. 528, 536, 537 (157 Pac. 806, and cases there cited); State v. Malheur County Court, 46 Or. 519 (81 Pac. 368).

The demurrer to the alternative writ admits only the facts stated in the writ, not conclusions of law: State v. Williams, 45 Or. 314, 330 (77 Pac. 965, 67 L. R. A. 167); O’Hara v. Parker, 27 Or. 156, 166 (39 Pac. 1004); Longshore Printing Co. v. Howell, 26 Or. 527, 535, 536 (38 Pac. 547, 46 Am. St. Rep. 640, 28 L. R. A. 464).

Tested by this rule, the statements in the alternative writ “which order was entered after the time allowed by statute in which to enter said order, and the court had no jurisdiction to enter said order” are conclusions of law, not statements of facts. Eliminating those two statements the paragraph reads:

“And it further appearing that heretofore and on the 7th day of June, 1924, the circuit court of the state of Oregon for Multnomah County, acting through the Honorable Eobert Gr. Morrow, Judge, entered an order vacating said judgment.”

The presumption of law is that the order was properly entered: Section 799, subd. 16, Or. L. This, presumption cannot be overcome by the broad statement of the relator that the order vacating the judgment was entered after the time allowed by statute, and that the court had no jurisdiction to enter said order. The alternative writ does not state upon what ground the order vacating the judgment was made. We must presume, therefore, that it was properly made. The alternative writ does not state facts sufficient to entitle the relator to the peremptory writ prayed for.

The relator had an appeal from the order vacating the judgment: Section 548, Or. L.; Archambeau v. Edmunson, 87 Or. 476, 484 (171 Pac. 186); Brewster v. Springer, 79 Or. 88 (154 Pac. 418); Delovage v. Old Oregon Creamery Co., 76 Or. 430, 435 (147 Pac. 392); Blumauer-Frank Drug Co. v. Horticultural Fire Relief of Or., 59 Or. 58, 59 (112 Pac. 1084). The relator, therefore, had a remedy at law. Where an appeal lies, the writ of mandamus does not lie: In re Clark, 79 Or. 325, 332 (154 Pac. 748, 155 Pac. 187); In re Von Klein, 67 Or. 298, 300 (135 Pac. 870).

For these reasons the petition for a peremptory writ of mandamus is refused and the petition dismissed. Writ Denied and Petition Dismissed.