Garrison v. Malheur County Court , 54 Or. 269 ( 1909 )

Mr. Justice McBride

delivered the opinion of the court.

1. Neither the petition for the writ nor the writ itself show that appellant ever appeared in the county court to oppose the order sought to be reviewed in the circuit court. Therefore he comes within the rule announced by this court in Raper v. Dunn, 53 Or. 203 (99 Pac. 889).

2. Counsel for appellant ingeniously argues that respondents, having made full return to the writ in the court below, without interposing any motion to quash or any demurrer on account of defect of parties, are precluded from raising that question, and will be held to have waived it. The practice at circuit in these particulars has been different in different courts and even in the same court has varied, according to the ideas of different attorneys. But the statute itself makes no provision for demurrer or motion to quash. When the writ issues, the inferior court has no alternative but to send up its return, and the hearing is then had upon inspection of the writ and the return, and no demurrer or motion is necessary.

This being our view of the case, the judgment of the circuit court will be affirmed.

Affirmed: Rehearing Denied.