DOANE v. STEIN. Since Laws 1913, p. 732, providing for district courts, and Laws 1915, p. 517, providing for a "small claims department" in such courts, make no provision for appeal in such small claims actions beyond the circuit court, no appeal lies to the Supreme Court, the right of appeal being purely statutory. Appeal from Circuit Court, Multnomah County; Robert G. Morrow, Judge. Action by Lulan L. Doane against Phillip Stein. From judgment for plaintiff, defendant appeals. Appeal dismissed. This case was begun in September, 1915, in the small claims department of the district court of Multnomah county for the recovery of the sum of $15. The plaintiff having recovered judgment, the defendant appealed to the circuit court, wherein a trial was had in July, 1916, resulting in a judgment for plaintiff for $15 and costs and disbursements. Thereupon defendant prosecuted an appeal to this court. Plaintiff moves to dismiss the appeal. Wood, Montague, Hunt & Cookingham, of Portland, for appellant. William La Force, of Portland, for respondent. MCBRIDE, C. J. Chapter 355, Gen. Laws Or. 1913, provides for district courts in all cities containing 100,000 or more inhabitants, and prescribes their jurisdiction. Chapter 327, Gen. Laws 1915, provides that wherever such district courts shall have been established there shall be a department thereof known as the small claims department, which shall have jurisdiction, but not exclusive, in cases for the recovery of money where the amount claimed does not exceed $20. him in such circuit court, then he shall pay in addition to said judgment the costs and attorney's fees to the plaintiff in the sum of $15." No provision is made in the act for any further appeal. The right of appeal in this state is purely statutory, and only exists where given by statute. Town of La Fayette v. Clark, 9 Or. 225. Actions in the small claims department of district courts are sui generis, and are not subject to the rules providing for appeals from justice's courts. The issues to be tried are purely oral, and while the circuit court is tion as it may deem necessary for a proper permitted to require such further informa reconsideration of the case, it is manifest that this court cannot pursue that course. We have nothing before us except the claim of the plaintiff and the findings of the circuit court, from which findings it would appear that plaintiff's demand was somewhat in the nature of a claim for money had and received. It certainly was not in the legislative mind, and contrary to its expressed intent to "dispense speedy and quick justice between the litigants," that these petty controversies wherein the issues are oral should be prolonged by repeated appeals. It is in fact impossible to get the whole case here upon appeal, and an inspection of the record in this particular case indicates that in any event we should be compelled to affirm the judgment, should we assume jurisdiction. The appeal will be dismissed. Under Code directing that publication of citation to heirs on petition for sale of decedent's land shall be for not less than four weeks or for such further time as the court or judge may direct, an order dated July 31st, directing publication of citation on petition for sale of land for not less than ten weeks, and fixing October 2d as the return day, was valid, although there were only eight weeks between the dates named. Department 1. Appeal from Circuit Court, The action is commenced by the plaintiff appearing and verifying the claim and paying a fee of 75 cents, whereupon the clerk issues summons directed to the defendant and requiring him to appear at a time therein specified, which shall not be less than five nor more than ten days after service of the notice, or upon failure to so appear judgment will be taken against him. No attorney or other person than the plaintiff or defendant is permitted to concern himself with the lit-rison and another. igation without the permission of the judge, defendants appeal. Affirmed. and the proceedings are wholly informal, no This is a suit to quiet title. The undispleadings being required, "with the sole ob-puted facts are about as follows: Hugh P. ject of dispensing speedy and quick justice Drennen, a resident of Clatsop county, was between the litigants." the owner of the land at the time of his The judgment of the court is conclusive up-death, April 13, 1899. John Chitwood was on the plaintiff, but it is provided that "if appointed administrator of the estate of the the defendant is dissatisfied he may, within decedent, and, having qualified, made a five days from the entry of such judgment showing to the effect that the estate was inagainst him, appeal to the circuit court of solvent, and that it was therefore necessary the county in which said court is located, to sell all of the real estate for the payand, if final judgment is rendered against ment of decedent's debts. Upon such peti tion and showing, the court made an order on July 31, 1899, in the following form: R. Sleight, of Portland, for appellants. W. Lair Thompson, of Portland (Snow & McCamant, of Portland, on the brief), for respondent. "Therefore it is hereby ordered and adjudged that citation issue herein to the heirs at law of said deceased and to all others interested in said estate to appear in this court on Monday the 2d day of October, 1899, at 10 o'clock in the BENSON, J. (after stating the facts as forenoon of said day at the courtroom of this above). The one serious contention of the court at the courthouse, Astoria, Oregon, to defendants is that the sale of the land by show cause if any exist why the prayer of said the administrator is void because the order petition to sell real estate described therein should not be granted. It is further ordered directing a citation to issue to the heirs that services on said heirs and others be made contains a direction that the notice shall be by publication of citation in the Astoria Herald, published for not less than ten successive a weekly newspaper published at Astoria, Oregon, having a general circulation in said county weeks, and that it appears upon the face and state, for not less than 10 successive weeks of the record that it was published for only from the first day of publication, and that re- eight weeks. The order fixes a definite return and proof of publication be made herein." turn day, which is the first day of a reguPursuant thereto a notice was published lar term of the court. Between that day in the newspaper designated, for eight suc- and the date upon which the order was passcessive weeks, the first publication being on ed (July 31st) there were not ten weeks inAugust 5th, and the last on September 30th. tervening, and that part of the order was of On October 2d, the specified return day, an course impossible of performance. This beorder was duly made directing the adminis-ing true, it appears beyond controversy that trator to sell the land, and thereafter the the provision for ten weeks of publication sale was made at public auction at which the plaintiff became the purchaser of the land involved herein for the sum of $500. Being timber land, the property has not since been in the actual possession of anybody, but plaintiff has regularly paid all taxes assessed against it. At the time of the sale it was not known that Drennen had any heirs, although great diligence had been exercised in seeking them. The proceeds of the sale were not sufficient to pay the decedent's debts, and the several creditors accepted lesser amounts in satisfaction of their claims. The sale to the plaintiff was confirmed and an administrator's deed executed December 7, 1899, which was recorded February 8, 1900. No adverse claim to the property was ever made until quitclaim deeds from parties claiming to be nephew and niece of decedent were recorded on July 27, 1915, and January 7, 1916. Upon learning the fact of such record plaintiff began this suit. A trial in the circuit court resulted in a decree for plaintiff, and defendants appeal. was a clerical error, either of computation or of writing. The statute which provides for such publication directs that it shall be for "not less than four weeks, or for such further time as the court or judge may prescribe." The order would have been perfectly good and valid if it had been silent as to the number of weeks, for then the statutory time would be implied. The important thing in the citation is the date fixed for the hearing. It has been held that a mistake amounting to an impossibility appearing upon the face of a judgment will not destroy the judgment if enough remains after it is eliminated to disclose the actual judgment rendered. 1 Black on Judgments, § 123. The elimination of the impossible requirement of the order in this case leaves à perfectly good citation, from which it follows that the decree must be affirmed; and it is so ordered. MCBRIDE, C. J., and BURNETT and HARRIS, JJ., concur. SCHWABACHER BROS. & CO., Inc., v. (Supreme Court of Washington. Jan. 7, 1918.) CRETION. tion of the receiver for an injunction. As we proceed, we think it will appear that this is nothing more than an attempt to review and reverse the action of the superior court in denying an application for an injunction. The controlling facts may be summarized as follows: On December 8, 1916, Schwabacher Bros. & Co., it being engaged in the wholesale merchandise business at Seattle, in King county, commenced an action in the superior court for that county against Schade & Parshall Company, it being engaged in the retail business at Wenatchee, in Chelan county, seeking recovery upon a promissory note executed by the latter. The action was instituted in King county because On an application to the court appointing a receiver for a corporation to restrain the prosecution of an action in another county against the corporation, if the court had any power at all, it possessed only such power as a court of equity exercises when it permits, or refuses to permit, its receiver to be sued in an independent action by one asserting his claim against property which is the subject of the receivership, and, treating the action as one of a provision in the note stipulating that acagainst the receiver, the question whether the claimant should be permitted to prosecute such action, or required to litigate its claim in the receivership proceeding, was determinable as a matter of discretion. tion upon the note might be had in that county. Schwabacher Bros. & Co. also prayed for the appointment of a receiver for of the insolvency of that company. On DeSchade & Parshall Company upon the ground 2. RECEIVERS 174(5)—LEAVE TO SUE-EFFECT OF FAILURE TO OBTAIN. The failure to obtain permission to sue a re-cember 22, 1916, the superior court for King ceiver from the court appointing him was noth-county entered its order in that action aping more than a mere irregularity, curable by pointing L. H. Macomber temporary receivlater obtaining such permission, which was, in effect, granted by the court's refusal to enjoin the action, assuming that the action was, in effect, one against the receiver, especially where the action did not result in any interference with the receiver's possession or control of the property which became subject to the receivership. 3. RECEIVERS 182-SUING RECEIVERS-EN JOINING ACTIONS. Where an action on a note executed by a corporation engaged in business in Chelan county was brought in King county, because of a provision in the note that action might be brought there, and in such action a receiver of the corporation was appointed, the court appointing the receiver did not abuse its discretion in refusing to enjoin the prosecution of an action in Chelan county against the corporation to foreclose a chattel mortgage, assuming that the action was, in effect, one against the receiver. er of Schade & Parshall Company, and thereafter made such appointment permanent. On December 22, 1916, the same day that the temporary receiver was appointed by the King county court, Fuller-Quigg Company commenced an action in the superior court for Chelan county against Schade & Parshall Company seeking foreclosure of a chattel mortgage executed by that company upon its stock of merchandise in Wenatchee to secure certain indebtedness due or to become due from it to Fuller-Quigg Company. On January 10, 1917, Macomber, as receiver for Schade & Parshall Company petitioned the superior court for King county, in the action in which he was appointed receiver, for a temporary restraining order and an injunction restraining and enjoining Fuller-Quigg Company from prosecuting its action to foreclose its chattel mortgage in the superior Action by Schwabacher Bros. & Co., Incor- court for Chelan county, proceeding upon the porated, against the Schade & Parshall Com- theory that it should be compelled to litigate pany, in which L. H. Macomber was appoint- its claimed rights under its chattel morted receiver of the Schade & Parshall Com-gage in the receivership proceedings in King pany. From an order denying an application to vacate an order setting aside a temporary restraining order against the prosecution of an action by the Fuller-Quigg Company, the receiver appeals. Affirmed. Department 1. Appeal from Superior Court, King County; John S. Jurey, Judge. county. On the same day, without notice to Fuller-Quigg Company, the superior court for King county issued a temporary restraining order, returnable January 20, 1917, bond having been given by the receiver as requirLeopold M. Stern, of Seattle, for appellant. ed by the court, temporarily restraining FulReeves & Reeves, of Wenatchee, for respond-ler-Quigg Company from prosecuting its chatent. tel mortgage foreclosure action in the superior court for Chelan county. The matter PARKER, J. This is an appeal by the re- came on for hearing and was heard on Janceiver of Schade & Parshall Company from uary 20th, when the court took under adan order of the superior court for King visement the question of whether or not it county denying an application of the receiv- would issue an injunction as prayed for by er for the vacation of an order setting aside the receiver. No order was then made cona temporary restraining order, which order tinuing the restraining order in force. On setting aside the temporary restraining or- February 26, 1917, the court entered a formal der was, in effect, a denial of an applica-order disposing of the matter, which, in terms, dissolved the temporary restraining | not even against Macomber, the receiver order, but, in effect, as we view the matter, was nothing more than a denial of the receiver's prayer for an injunction against the prosecution of Fuller-Quigg Company's chattel mortgage foreclosure in Chelan county. On March 5, 1917, Macomber moved the superior court to set aside its order dissolving the restraining order and denying a temporary injunction, which motion coming on for hearing on March 10, 1917, was by the court denied, and an order entered accordingly. appointed by the superior court for King county. But even if it were, whether such an independent action could be waged against the receiver by Fuller-Quigg Company, or that company should be compelled to litigate its claim in the receivership proceedings in King county, would be determinable as a matter of discretion by the superior court for King county. Blake v. State Savings Bank, 12 Wash. 619, 41 Pac. 909; 34 Cyc. 420; High, Receivers (4th Ed.) § 254b. [1] While this order of March 10, 1917, is the only order mentioned in the receiver's notice of appeal as being appealed from by him, his counsel's argument is addressed to his claim of error on the part of the superior court in not continuing in force the temporary restraining order as an injunction enjoin ing the prosecution of the chattel mortgage foreclosure of Fuller-Quigg Company in the superior court for Chelan county. Assuming for the sake of argument that the receiver's appeal so taken can draw in question here this claim of error, it seems plain to us that, in no event, is any question here presented touching the merits of the controversy other than the question of whether or not the superior court for King county abused its dis cretion in refusing to enjoin the prosecution of the foreclosure action of Fuller-Quigg Company in the superior court for Chelan county; that is, the superior court for King county, if it had any power in the premises at all, possessed only such power with reference thereto as a court of equity exercises when it permits, or refuses to permit, its receiver to be sued in an independent action by one asserting his claim against property which is the subject of a receivership under its control. The action of Fuller-Quigg Company seeking foreclosure of its chattel mortgage in the superior court for Chelan county was and WEBSTER, JJ., concur. [2] Nor would the failure of Fuller-Quigg Company to first obtain permission of the King county court to sue the receiver be anything more than a mere irregularity, curable by later obtaining such permission, which was in effect, granted by the court's refusal to enjoin the independent. foreclosure action, if we assume that that action was, in effect, a suing of the receiver. Washington Trust Co. v. Local, etc., Tel. Co., 73 Wash. 627, 132 Pac. 398. We note in this connection that this record, at least inferentially, shows that the foreclosure action in Chelan county did not result in any interference with the receiver's possession or control of the property which became subject to the receivership. [3] Plainly the record before us fails to show any abuse of discretion on the part of the superior court for King county in refusing to enjoin the prosecution of the foreclosure action of Fuller-Quigg Company in the superior court for Chelan county. This being our conclusion upon the merits of the controversy, it becomes unnecessary to notice other reasons urged by counsel for FullerQuigg Company why the order appealed from should not be disturbed. The order appealed from is affirmed. ELLIS, C. J., and FULLERTON, MAIN, CROWE v. ALBEE, Mayor. (Supreme Court of Oregon. Jan. 15, 1918.) 1. EVIDENCE 31-JUDICIAL NOTICE-CITY CHARTERS. Under Laws 1917, p. 514, courts are required to take judicial notice of a city charter after a duly certified copy thereof has been filed with the librarian of the Supreme Court. 2. MUNICIPAL CORPORATIONS 159(6)-DIS CHARGE OF OFFICERS-REVIEW. Under Portland City Charter 1914, c. 4, § 62, providing for suspending of city officers by the mayor, and sections 98, 100, 101, 108, and 114, establishing a civil service board before whom an officer removed may demand a hearing, and giving the board power to subpoena and compel the attendance of witnesses, etc., and to reinstate officers or affirm dismissal, the board when so acting is a quasi judicial tribunal, whose judgment and discretion will not be interfered with by the courts, but whose acts will be reviewed to see if they conform to the provisions of the statutes conferring such power. 3. MUNICIPAL CORPORATIONS 159(6)-OFFICERS CIVIL SERVICE BOARD-HEARING ON DISCHARGE. 1914, the plaintiff was and for several years prior thereto had been regularly and permanently appointed a patrolman as a member of the police department of that city, under the classified civil service rules at a monthly salary of $100. That on November 30, 1914, he was removed and discharged from the service by the defendant. That within ten days therefrom the plaintiff filed with the civil service board of that city a written demand for an investigation of his removal, alleging that his dismissal was for political or religious reasons, and not for the purpose of improving the public service. That at a meeting of such board held January 14, 1915, an investigation pursuant to such demand was had and evidence was submitted by the plaintiff and defendant. That on February 18, 1915, at a regular meeting of the board when were present two of the three members thereof, an order was made, the material part of which reads: "That after having carefully considered all of the evidence presented in this case, it was found that the evidence presented on behalf of Policeman Crowe's condition warranted enough consideration to justify the following verdict, to wit: That Mr. Crowe be suspended from the service from the date of his discharge, November 30, 1914, until May 1, 1915, and that an order be entered that he report for duty on May 1st aforesaid" The civil service board, upon hearing an appeal from officer dismissed, is confined to determination of the questions of the dismissal being for political or religious reasons, or whether in good faith for the improvement of the service, and the officer must sustain the burden of proof, under Portland City Charter 1914, c. 4, § 108; and where, without written findings, a conclusion of law commuting the sentence of dismissal to suspension is made, it will be pre--of which order the plaintiff and defendant sumed the charges were sustained. 4. COURTS 114-ORDERS NUNC PRO TUNC. An order for a nunc pro tunc entry of findings not stating what conclusion of fact or law had been theretofore made is insufficient, and such entry must neither add to nor take from the original. 5. MUNICIPAL CORPORATIONS 159(4)-CivIL SERVICE BOARD-REVIEW-REHEARNG. A civil service board acting as a quasi judicial tribunal for determining whether an officer was properly removed cannot grant a rehearing, unless specifically authorized by law. Department 2. Appeal from Circuit Court, Multnomah County; C. U. Gantenbein, Judge. Proceeding in mandamus by M. E. Crowe against H. R. Albee, Mayor of the City of Portland. Demurrer to the alternative writ sustained, and proceeding dismissed, and plaintiff appeals. Affirmed. This proceeding was instituted December 9, 1915, in the circuit court of Multnomah county by M. E. Crowe against H. R. Albee, the then mayor of the city of Portland, Or., to compel the reinstatement of the plaintiff as a member of the police force of that municipality, from which he had been dismissed by the defendant. An alternative writ of mandamus was issued, stating in effect: were duly notified. That on May 1, 1915, and on the first day of each subsequent month, the plaintiff presented himself for service, and demanded of the defendant that he be reinstated at the monthly compensation he had been receiving, but such offer and request were refused. That on October 27, 1915, at a regular meeting of the civil service board, another order was made, relating to the application of the plaintiff for reinstatement, reciting the proceedings that were had and the conclusion reached at the original hearing, stating that the patrolman was discharged at the recommendation and upon the complaint of the chief of police "of neglect of duty and conduct unbecoming an officer." That the dismissal "was not made in good faith for the purpose of improving the public service. That it is to the benefit of public service to reinstate the said M. E. Crowe to his said position. That the said M. E. Crowe is entitled to reinstatement upon the following conditions: That he be reinstated and his said position restored to him as of date May 1, 1915, with pay from said date, but that he be suspended during the interim. * Inasmuch as the minutes of the board's proceedings held at its meeting February 18, 1915, do not state completely and acof that date in said matter, it is further ordered curately the board's then findings and order that these findings, order, and proceedings be entered of record as of February 18, 1915." * The alternative writ further states that on November 20, 1915, due service of the latter order was accepted by the defendant, of whom the plaintiff on December 1st of that That the city of Portland is a duly organized municipal corporation. That the defendant was the mayor thereof, and by the charter had the appointment and supervision of the police department and of the employés engaged therein. That on November 30, year demanded restoration to the position of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |