Title Abstract Co. v. Masburg

113 P. 2, 58 Or. 190

• Court: Oregon Supreme Court
• Decided: February 14, 1911
• Status: Published

Opinion

Mr. Justice Burnett

delivered the opinion of the court.

“Any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors therein, as in this chapter prescribed, and not otherwise. Upon a review, the court may review any intermediate order involving the merits and necessarily affecting the decision or determination sought to be reviewed. * * 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, and not otherwise.” Sections 603-605, L. O. L.

1. The judgment of a court having jurisdiction of the subject-matter and of the parties is immune from collateral attack, no matter how erroneous such judgment may be as a matter of law. This is the doctrine of such cases as North Pacific Cycle Co. v. Thomas, 26 Or. 381 (38 Pac. 307: 46 Am. St. Rep. 636); McFarlane v. Cornelius, 43 Or. 513 (73 Pac. 325: 74 Pac. 468), and other cases of like nature cited by the respondent here.

2. But the proceeding under a writ of review is a direct proceeding to correct the errors of law apparent on the face of the record of an inferior court, officer, or tribunal in the exercise of judicial functions. By virtue of such writ the circuit court is entitled to examine a record of an inferior tribunal and to determine whether or not that tribunal exercised its functions erroneously to the injury of some substantial right of the petitioner for the writ.

3. The question to be determined in this case, then, is whether the matter pleaded in the answer of the defendant as a counterclaim is, in point of law, a sufficient defense or counterclaim to the plaintiff’s complaint in the justice’s court. Section 74, L. O. L., lays down the rule that a “counterclaim * * must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: (1) A cause of action arising out of the contract, or transaction set forth in the complaint, as the foundation of the plaintiff’s claim; (2) in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.” Section 78 also provides:

“The plaintiff may demur to an answer containing new matter when it appears upon the face thereof that such new matter does not constitute a defense or counterclaim.”

And this is the ground of the demurrer to the answer in question. Applying the definition of a counterclaim quoted above to the answer in question, we discover that there is nothing in the answer to show that the counterclaim arose out of the contract or transaction set forth in the complaint. An examination of the dates alleged in the complaint and in the answer shows that they occurred at different times and not as parts of the same transaction, so that the counterclaim is excluded from the first subdivision of Section 74. It cannot be classed under the second subdivision of that section because it does not profess to arise upon a contract.

4. It avowedly proceeds as upon a tort, for it alleges that the defendant intrusted certain abstracts to the plaintiff for the purpose of having them brought down to date and for no other purpose; that the plaintiff caused copies of the same to be made for its own use; and that by so doing it converted the contents of his abstracts to its own use. Conversion is a tort and cannot be used as a counterclaim to an action on contract arising out of a separate and independent transaction.

The circuit court erred in dismissing the writ, and its judgment should be reversed. The cause is remanded to the circuit court, with directions to there enter a judgment in favor of the plaintiff and against the defendant for $15.75, the amount found by the justice’s court to be due to the plaintiff from the defendant on the cause of action set forth in the complaint, and for the costs and disbursements of the proceedings in the justice’s court and in the Supreme and circuit courts. Reversed.