Goyne v. Tracy

185 P. 584, 94 Or. 216, 1919 Ore. LEXIS 217

Opinion

BURNETT, J.

1-4. There is no merit in the objection that the cost bill was not served. It is not required: Egan v. North American Loan Co., 45 Or. 131, 139 (76 Pac. 774, 77 Pac. 392). If it was error at all, the instruction of the justice of the peace to the jury was harmless for it appeared by the record that the verdict was unanimous. This being an action for the recovery of money it is required by law that the jury shall assess the amount of recovery: Section 156, L. O. L. The verdict in question did not conform to this statute and hence gave the justice no authority to render a judgment upon it. The justice should have caused the jury to correct it or have sent the jury out again: Section 150, L. O. L. Having no authority to render judgment on such a verdict and the error appearing on the face of the record there is presented a question amenable to the right of review under Section 605, L. O. L.:

“The writ shall be concurrent with the right of appeal and shall be allowed in all cases where the inferior court, officer or tribunal in the exercise of judicial functions appears to have exercised such functions erroneously or to have exceeded its or his jurisdiction to the injury of some substantial right of the plaintiff but not otherwise.”

5. “With this record before it on the return of the writ of review the Circuit Court under Section 611, L. O. L., had power to

“affirm, modify, reverse or annul the decision or determination reviewed and if necessary to award restitution to the plaintiff or by mandate direct the inferior court, officer or tribunal to proceed in the matter reviewed according to its decision.”

The jury having been discharged it is too late to amend the verdict. Hence, under the sections of the Code already mentioned, the action of the Circuit Court in remanding the case for further proceedings was appropriate and is affirmed. Affirmed.