Summary
In Holmes v. Graham, 159 Or. 466, 80 P.2d 870 (1938), the Supreme Court held expressly that a writ of review, not a suit in equity to set aside the county court's proceedings, was the proper remedy of owners of land abutting on a vacated county road.
Summary of this case from Strawberry Hill v. Benton CommOpinion
Argued at Pendleton May 3, 1938
Affirmed July 6, 1938
Appeal from Circuit Court, Malheur County, CHARLES W. ELLIS, Judge.
Suit in equity by F.G. Holmes and another against David F. Graham, county judge of Malheur county, Oregon, and others, to set aside the resolution of the county court vacating a county road and to declare the county road open for public use and travel. From a judgment of dismissal, the plaintiffs appeal.
AFFIRMED.
A.L. Fletcher, of Nyssa, for appellants.
Anthony Yturri, of Ontario (M.A. Biggs, of Ontario, on the brief), for respondents.
In Banc.
This is a suit in equity by two landowners, with holdings abutting upon a county road, to set aside and hold for naught all of the proceedings taken by the county court of Malheur county in the matter of the vacation of the county road, including the resolution of the county court vacating the road, and to declare the county road to be open for public use and travel.
It is alleged in the complaint, as stated in plaintiffs' brief, that on November 6, 1935, the county court of Malheur county, Oregon, adopted a resolution in writing and caused the same to be entered in the journal, vacating and closing a certain county road described in said resolution and also in the complaint, and that ever since the adoption of such resolution, and entry of same in the journal of said county court, said road has been closed to the public.
The complaint alleges that the resolution and all the proceedings taken by said county court in regard to the vacating of the county road were and are null and void and of no effect, and said county court did not have jurisdiction to make said order or to adopt said resolution for the reasons, as follows: That the county court did not adopt the resolution declaring that proceedings to vacate said road would be undertaken, as recited in said resolution; because no resolution, even if the same had in fact been adopted by the county court, was entered in its journal; because the county court had no jurisdiction in said proceedings to make or adopt said resolution of November 6, 1935, vacating said county road; because no trace of any order or resolution made at the September term of said county court appears in the journal of said court, or can be found, and that the recitals in the resolution of November 6, 1935, are untrue in fact, and the proceedings taken for vacating said road were irregular and void.
The allegations of the complaint disclose the interest of the plaintiffs and the fact that they will suffer irreparable injury, and that they have no plain, speedy and adequate remedy at law.
Defendants filed their answer in which they admit several paragraphs and deny several. As a separate and affirmative defense, they allege the adoption of a resolution August 13, 1935, but state that, for some reason unknown to the defendants, said resolution was lost or misplaced without being placed on record. The answer further alleges, in substance, that at an adjourned session of the regular August term, 1935, on August 13, the county judge and two commissioners being present, said resolution was adopted, as follows:
"Whereas, the County Court consisting of the County Judge and the two County Commissioners, of its own motion deem it advisable to vacate a certain county road between the Nyssa-Jordan Valley road and the junction with the county road at about the Northwest corner of the Northeast Quarter of Section 2, Township 21, Range 46 E.W.M., and which said county road is hereinafter specifically described, * * *."
The resolution described the county road proposed to be vacated, the lands through which it passed, and the owners thereof, and declared that the road was useless as a part of the general road system of the county, and resolved that the county road described in the resolution be vacated, thereafter describing the road in full, and that the county surveyor "is hereby notified" of this proceeding and is directed to examine said road and make a report in writing on the same, as provided by statute. The county surveyor reported to the court that he examined the county road described and that it was best to vacate the road. Thereupon the county court, sitting in regular session on September 4, 1935, regularly adopted a resolution reciting that on August 13, 1935, the court had adopted its resolution instituting proceedings for the vacation of the county road described, and directed the county surveyor to examine said road and make his report thereon. The report of the county surveyor having been filed with the clerk, the court resolved "that the 15th day of October, 1935, at the hour of 10:00 o'clock in the forenoon be and is hereby fixed as the time and the County Court Room in the Malheur County Court House at Vale, Oregon, as the place for hearing the said report of the County Surveyor and for considering the resolution for the vacation of said road and for hearing and considering any objections that may be made to vacating said road; * * *," and directed the clerk of Malheur county to give notice of the time and place of hearing on the resolution for vacating said road and the hearing of any objections to vacating said road. The clerk prepared and signed the notice for the hearing, reciting that the resolution, at the county court's regular session in August, had been adopted. Proof of the posting of notice by J. Edwin Johnson, county surveyor, was regularly made and filed with the county clerk.
In compliance with the notice, it is alleged by defendants that the plaintiffs herein, together with other interested parties in the community where the road was to be vacated, appeared before the county court and the hearing was thereupon had, giving all parties an opportunity to make proof of their cause therein, whereupon the county court adjourned said meeting until November 6, 1935, at which time it adopted the resolution reciting all the proceedings, describing the road, and resolving that "the same is hereby vacated."
Plaintiffs demurred to the answer of defendants on the ground that the new matter alleged in defendants' answer did not constitute a defense or counterclaim.
At the time of the argument on the demurrer, June 14, 1937, the question arose as to the jurisdiction of the circuit court to hear the matter set out in plaintiffs' complaint. After argument and submission of briefs, the trial judge overruled the demurrer and dismissed the suit on the ground that the court had no jurisdiction, and that laches had been committed by plaintiffs in not taking proper steps to protect their interests within proper time. The plaintiffs appeal.
The resolution initiating the proceedings for the vacation of the road was regularly adopted, and the requisite notice was regularly served by posting, as required by statute. The plaintiffs had their day in court and ample opportunity to present objections. The proceedings were irregular but not void. The fact that the first resolution was not entered in the journal at the time of its adoption, which would have been a ministerial act, did not render the proceedings void.
Defendants submit that plaintiffs' proper remedy was by writ of review. Section 28-1012, Oregon Code 1930, provides:
"The provisions of chapter V of title VII relating to appeals are intended to apply to judgments and decrees of the county court in all cases, but not to its decisions given or made in the transaction of county business."
In Leader v. Multnomah County, 23 Or. 213 ( 31 P. 481), it was held:
"By the statute, the proceedings of the county court in the transaction of county business, can be reviewed only upon a writ of review: Code, sec. 902; and this is an attempt by an appeal to review the proceedings of that court in the location and establishment of a county road, which is the transaction of county business, and is therefore prohibited by the section of the statute referred to." (Which is now section 28-1012).
The plaintiffs brought suit to set aside the proceedings in the county court vacating the county road mentioned and prosecuted this appeal from a decree denying such relief. A writ of review is the proper remedy: Mountain v. County of Multnomah, 8 Or. 470; Fisher v. Union County, 43 Or. 223 ( 72 P. 797). The purpose of a writ of review is to bring up the record from the inferior tribunal to determine whether or not that inferior tribunal acted without jurisdiction, or exceeded its jurisdiction, or exercised its functions erroneously.
It is alleged in plaintiffs' complaint that the plaintiffs have no plain, speedy or adequate remedy at law. It goes without saying that equity has no jurisdiction where a party has a plain, speedy or adequate remedy at law. The plaintiffs had a complete remedy at law by means of a writ of review.
In Farrow v. Nevin, 44 Or. 496 ( 75 P. 711), the court held that the purpose of a writ of review in Oregon is to review the proceedings of the inferior tribunal only in those particulars wherein it has acted without jurisdiction or has exercised its functions erroneously or contrary to procedure applicable to the matter before it.
A court of equity should not interfere where the parties have lost their legal remedy due to their failure to apply for such legal remedy: Snyder v. Vannoy, 1 Or. 344; Hoover v. Bartlett, 42 Or. 145 ( 70 P. 378); 34 C.J. 438, § 687.
It follows that the decision of the circuit court in overruling the demurrer to the answer and dismissing the suit was proper.
The judgment of the lower court is affirmed.
RAND and ROSSMAN, JJ., not sitting.