Williams v. Henry

142 P. 337, 70 Or. 466, 1914 Ore. LEXIS 275

• Court: Oregon Supreme Court
• Decided: May 26, 1914
• Status: Published

Opinion

Mr. Justice Burnett

delivered the opinion of the court.

1. The following sections of our Code govern this matter:

“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 * # Section 603, L. O. L.

“Upon the filing of the order allowing the writ, and the petition and undertaking of the plaintiff, the clerk shall issue the writ, according to the direction of the order. The writ shall be served by delivering the original, according to the direction thereof, and may be served by any officer or person authorized to serve a summons, and a certified copy of the writ shall be served by delivery to the opposite party in the suit or proceeding sought to be reviewed, at least ten'-days before the return of the original writ”: Section 609, L. O. L.

By proper service of the writ alone can the court acquire jurisdiction to proceed in the matter to be reviewed. If the remonstrators were parties entitled to sue out the writ, the persons who initiated the proceedings by filing the petition, for the division of the district, under Section 4021, L. O. L. were certainly opposite parties upon whom the writ should be served as required by Section 609.

2. If the members of the boundary board were proper parties as constituents of tribunal ordering the division, service upon the secretary would not be sufficient to gain jurisdiction of the board. Although the statute prescribes that the writ shall be served by any officer or person authorized to serve a summons, the manner of its service is prescribed by the statute itself, and that does not show that it shall be served as a summons. True enough, it is said in Section 55, L. O. L.:

“The summons shall be served by delivering a copy thereof, together with a copy of the complaint prepared and certified by the plaintiff, his agent or attorney, or by the county clerk, as follows: * * If against any county, incorporated town, school district, or other public corporation in this state, to the clerk of such county, incorporated town, school district, or other public corporation. * * ”

Yet the boundary board is not a corporation, and, in the absence of a statutory rule authorizing service upon that body to be -accomplished by delivery of a document to its clerk, the court could not gain jurisdiction of the members of the board otherwise than by service upon each of them.

For the reason that the Circuit Court did not acquire jurisdiction by proper service of the writ, the judgment dismissing the same is affirmed. Affirmed.