Clubine v. City of Merrill

Opinion by Mr. Chief Justice McBride. 1, 2, There is nothing in the record here to indicate that the appeal which petitioner initiated in the criminal proceeding was ever perfected. If it were, he could not review the proceeding while the appeal was pending. While review and appeal are concurrent remedies, a party cannot exercise both at the same time: Forbis v. Inman, 23 Or. 68 (31 Pac. 204); Feller v. Feller, 40 Or. 73 (66 Pac. 468); McAnish v. Grant, 44 Or. 57 (74 Pac. 396). If the appeal were pending, review would not lie. If no appeal were pending, the court had a right to vacate its judgment, if void; the rule being that while a Justice’s Court cannot set aside a judgment because it is erroneous, it may vacate a void judgment and proceed as though no such apparent judgment had ever been entered: Chapman v. Floyd, 68 Ga. 455; Gates v. Lane, 49 Cal. 269. 3. Viewing the case in this light it is unnecessary to consider the other matters discussed in the briefs. As the case stands this proceeding is an attempt to review a judgment which had been already vacated by the court which pronounced it and the case is in the same position as though no judgment had been rendered. Whether the delay of the court in bringing the defendant to trial operated as a discontinu — 91 — anee of the case is not before us, and as the alleged offense is one which the present prohibitive law renders impossible of recurrence, it is hardly probable that the authorities of the city will attempt at this late date to continue the prosecution. The judgment of the Circuit Court is affirmed. Affirmed. Mr. Justice Moore, Mr. Justice Bean and Mr. Justice McCamant concur.