Schirott v. Phillippi

"Wilson, J. l'n dismissing the writ below, that court seems to have decided these propositions, that appeal and 486 review were not concurrent remedies, that when an appeal could be taken a review would not be allowed, that after the time for taking an appeal had expired, when it might have been made available, it would be too late for a party to resort to a review. By section 572, p. 294, of the Code, the writ, heretofore known as the writ of certiorari, is known in this code as the writ of review, and the next section declares “that any party to any process or proceeding before or by any inferior court, etc., may have the decision or determination thereof, reviewed for errors therein.” This is substantially the law as it was in 1860. At the December Term, 1860, of the supreme court of this state, the same question was before that court, as is now here. In Blanchard et al. v. Bennett et al., 1 Oregon, 329, the court held, “a certiorari may have been a proper remedy, and so may have been an appeal; the statute regulating appeals from justices of the peace allows appeals in all cases, etc., (Laws of Oregon, 1854; p. 295, sec. 185.) I therefore conclude that appeals lie in all cases from the final decisions of justices of the peace, and the remedy by certiorari is concurrent.” When the writ of review was substituted for that of certiorari, it was subject to the same construction and application. The only difference in the law is found in sec. 575 of the Code, which was not distinctly found in the law of 1854. That declares that the writ of review “shall be allowed, in all cases where there is no appeal, or other plain, speedy, and adequate remedy, and where the inferior court officer appears to have exercised such functions erroneously, etc.” When a party complains only of the errors in law appearing upon the record and proceedings, it is certainly not a. plain, speedy or adequate remedy to force him to rely upon an appeal, which, under sec. 536, subdiv. 3, p. 285, of the Code, requires the same proceedings as though the case had been commenced in the circuit court, involving witnesses and a multitude of costs and disbursements, instead of having the pure questions of law, governing the case, heard and decided with comparatively no trouble or cost. 487 The circuit judge, in allowing the writ, passes to some extent upon whether the causes alleged are errors of law or not, and if they involve more than legal questions, it might be proper to deny the writ and leave the party to his appeal, as the mode by which all the questions of law and fact may be retried. In review, everything is tried and decided from an inspection of the record, and an appeal cannot accomplish this without imposing a great incumbrance of other matters. Evidently the legislature intended this construction, for in sec. 116, p. 604, of the act relating to courts of justices of -the peace, distinctly withdraws the operations of the see. 64, p. 595, which gives an appeal in all cases from such court, except in three cases mentioned, in these words, “No provision of this act in relation to appeals, or the right of appeal, in either civil or criminal cases, must be construed so as to prevent either party to a judgment, given in a justice’s court from having the same review in the circuit court, for errors in law appearing upon the face of such judgment, or the proceedings connected therewith, as provided in title 1 chap. VII,” which is the law in reference to review. Taking the two laws together, and the reasons which operate in allowing the writ of review, we think that a party may have a right to ■ a writ of review for errors in law apparent upon the record, etc., at the same time that he might have a right of appeal, which would retry the merits of the case as well as review the questions of law; that review and appeal may thus be Concurrent remedies; and it follows then, that the expiration of a right to appeal, as to time, does not extinguish the right to a review. The one cuts off all possibility of having the case reheard upon its merits; but if the law, apparent from the papers, forbid such a judgment, then the judgment may be reversed or modified as to the mere questions of law at any time during the limit assigned for review. We think the judgment should be reversed and remanded.