Holmes v. Cole , 51 Or. 483 ( 1908 )

Mr. Justice Eakin

delivered the opinion of the court.

1. The only ruling made by the circuit court was upon the motion to dismiss or quash the writ. The appeal has been argued here by both parties upon the merits as well as upon the motion, but we can consider no question not passed on by the lower court.

2. We are first met by the question whether the petition for the writ alleges sufficient facts to disclose error and justify the issuance of the writ. B. & C. Comp. § 596, provides that the writ shall be allowed by the court of the county wherein the decision or determination sought to be reviewed was made, upon the petition of the plaintiff describing the same with convenient certainty, and setting forth the errors relied on. So it necessarily must contain a sufficient statement of the facts, when taken as true, to disclose to the court that the plaintiff is entitled to the writ. Mr. Justice Wolverton, in Southern Oregon Co. v. Coos County, 30 Or. 250 (47 Pac. 852), holds that the petition should state such facts as would show prima facie by an inspection of it that the inferior court has acted without jurisdiction or has exercised its functions erroneously; and, as in other pleadings, a statement of a conclusion of law is bad, and reference cannot be had to the return to supply omissions in a petition. Mr. Chief Justice Moore, in Fisher v. Union County, 43 Or. 223 (72 Pac. 797), also holds that the petition must state the facts from an inspection of which the court can determine whether an injury has been done the petitioner; and the averment of conclusions of law are insufficient as a basis for any relief. Therefore, if the petition does not state such facts as disclose error in the rulings of the lower court, then the merits of the case cannot be considered.

3. As appears by the petition for the writ in this case, there had been no decision or determination of the matter pending. The proceedings had just been put at issue and the cause set for trial when they were stayed by the order granting the writ. Therefore there was nothing to be reviewed. Review lies only from the decision or determination of the proceeding (B. & C. Comp. §§ 595, 596), and not from an interlocutory order, such as the decision upon a motion to strike out part of an answer or to bring in a new party. This court has frequently held that the writ of review is substantially the common-law remedy by certiorari: Dayton v. Board of Equalization, 33 Or. 131 (50 Pac. 1009); Garnsey v. County Court, 33 Or. 201 (54 Pac. 539, 1089). At common law the writ was used both as a writ of review after final judgment, and also for removing the entire cause at any stage of the proceeding for hearing and determination in the superior court: Harris, Certiorari, 4; 2 Spell. Extr. Rel. §§ 1894, 1917; State ex rel. v. Walbridge, 123 Mo. 524 (27 S. W. 379, 28 S. W. 586). Our statute by Sections 595 and 603 defines the office of the writ which-is only the power of review; and therefore it cannot operate to remove the cause to the circuit court for trial. This is recognized as its office, regardless of statute: Harris, Certiorari, § 194. In 2 Spell. Extr. Rel. § 1894, it is said: “It was a distinguishing feature of this remedy at common law that it was the appropriate writ for the removal of a cause before judgment, while the writ of error removed it afterwards. But it has now become the general and settled, if not the universal practice, to refuse the writ of certiorari where sought while the proceedings below are still pending and undetermined, and that it does not go to inferior courts, tribunals, or officers exercising judicial functions until the proceedings before them are completed, and a final determination or adjudication had. And where the record brought up by writ of certiorari shows upon its face that no final judgment has been entered in the court below, and that the cause is still pending there, the writ will be quashed.”

4. The matter sought to be reviewed here was still pending in the county court and undetermined when the writ was issued, and there was nothing for the consideration of the superior court. This sufficiently appears upon the face of the petition. It is claimed by appellants, however, that the writ cannot be dismissed or quashed upon motion, that, after it is once issued, it can be heard only upon the merits; but this position is untenable. An application for an order is a motion (B. & C. Comp. §534), and the definition of a motion and an order in an action are applicable to similar acts in a special proceeding (B. & C. Comp. § 593). If the petition is insufficient to present an issue to the court, the adverse party may attack it before it comes on for hearing on the merits.

5. This is a special proceeding, and a motion is the proper method for calling to the attention of the court any matter requiring its action. The writ is issued ex parte, and if, upon an examination of the petition in the first instance, the judge finds it insufficient, he should disallow the writ: B. & C. Comp. § 596; Ferguson v. Byers, 40 Or. 468 (67 Pac. 1115, 69.Pac. 32). If he has inadvertently issued the writ, the adverse party is not precluded thereby from questioning the sufficiency of the petition. No errors can be considered upon the merits except those properly brought up by the petition (Fisher v. Union County, 43 Or. 223: 72 Pac. 797), and, when it is insufficient to raise any question, the court must dismiss it. It has always been the practice of the trial courts to entertain such a motion, and it has not been questioned in this court. In Southern Oregon Co. v. Coos County, 30 Or. 250 (47 Pac. 852), the writ was dismissed by the circuit court upon motion to quash the writ for insufficiency of the petition, which was the only question presented in this court, and the ruling was sustained. This is also recognized in Gaston v. Portland, 48 Or. 82 (84 Pac. 1040), and is the rule regardless of statute, as was held in State ex rel. v. Walbridge, 123 Mo. 524 (27 S. W. 379, 28 S. W. 586); Randle v. Williams, 18 Ark. 380; Haines v. Campion, 18 N. J. Law, 49; State v. Ten Eyck, 18 N. J. Law, 373; Gregory v. Dixon, 7 Wash. 27 (34 Pac. 212).

Therefore the writ was properly quashed; and the judgment of the lower court is affirmed.

Affirmed.