Canuto v. Weinberger

155 P. 190, 79 Or. 342, 1916 Ore. LEXIS 189

• Court: Oregon Supreme Court
• Decided: February 23, 1916
• Status: Published

Opinion

Mr. Justice Burnett

delivered the opinion of the court.

1-3. The court might have allowed the writ of mandamus either in the alternative or in the peremptory form, but Section 614, L. O. L., says:

“It may be allowed, with or without notice to the adverse party,, as in the case of a writ of review. ’ ’

The order first mentioned amounted to a direction that notice be served on the adverse party before allowing the writ in either form. Necessarily, on the hearing consequent upon the notice, the court would have to examine the petition to determine whether any grounds existed for granting the writ. It is a general principle, relating to mandamus to compel action by an executive officer, that the right to the same must be apparent. The rule is applicable to this proceeding in the following manner: If upon examination of the record upon which the execution was issued it should be found so defective that the jurisdiction of the court making it does not appear, the right to compel the officer to act under the execution would not be sufficiently manifest to justify the issuance of the writ of mandamus.

4. The District Court of the Portland district in Multnomah County, Oregon, exists by virtue of Chapter 355 of the General Laws of 1913. In substance that act creates a court in cities of 100,000 population or more, which is equivalent to a Justice’s Court. The tribunal thus established is one of limited powers. Formerly, the rule in pleading the judgments of such tribunals made it necessary to set out in detail the facts conferring jurisdiction. The asperity of this requisite was relieved by Section 87, L. O. L., as follows:

“In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made.”

In Ashley v. Pick, 53 Or. 410 (100 Pac. 1103), the authorities are reviewed, and, holding that the statute must be strictly construed, the canon is there established that if a party would be relieved from stating the doings of the inferior tribunal in detail, he must strictly comply with the enactment relieving him from that duty, and declare in its very terms that the judgment was “duly” given or made. Failing in this, his pleading is not sufficient.

5. On inspection of the petition we are unable to discover that the District Court had jurisdiction over the subject of the action. It is true, it is stated that it was one “in forcible entry and detainer,” and that “a judgment of restitution was rendered against the said defendant Level.” This, however, is a mere conclusion of law, unsupported by any facts, showing, for instance, that it was for the detainer of real property or that the same was in Multnomah County. In the absence of a particular recital of all the facts investing the District' Court with authority to act, or in lieu thereof strict compliance with the statute mentioned giving a shorter form of statement, the petition shows that the proceeding in the District Court failed to confer jurisdiction upon that tribunal, and hence, as a consequence, the duty of the constable to serve a writ issued upon such a judgment was not plain. In brief, the petitioner did not plead a judgment sufficient to support his execution. Under these circumstances the court was justifiable in refusing tbe writ and dismissing tbe proceeding. Its judgment is affirmed.

Affirmed.

Mb. Justice Eakin absent.