Page images
PDF
EPUB

§ 927. Jurisdiction not to Include Certain Cases.

The jurisdiction conferred by the last section does not extend, however,1. To an action in which the title to real property shall come in question; 2. To an action for false imprisonment, libel, slander, malicious prosecution, criminal conversation, seduction, or upon a promise to marry. [L. 1862; D. Cd. § 882 ; H. C. § 909.]

This section clearly indicates the intention of the legislature to withhold from justice's courts the right to try any action where the title to real estate comes in question. Justice's courts not being courts of record, their judgments are not safe and enduring evidence of title to realty; and, being often presided over by men untrained in the law, and by reason thereof incapable of determining the intricate and difficult questions which arise in relation to titles to land, they are not regarded as safe depositories for the exercise of such jurisdiction: Duffy v. Mix, 24 Or. 267. 33 Pac. 807; Aiken v. Aiken, 12 Or. 203, 6 Pac. 682; Malarkey v. O'Leary, 34 Or. 497, 56 Pac. 521. If title to real property comes in question in a trial in a justice's court, by defense or plea, such court is ousted of its jurisdiction: Sweek v. Galbreath, 11 Or. 516, 6 Pac. 220; but the jurisdiction of the justice

is not ousted simply because an issue as
to the title is made in the pleadings, it
must appear from the evidence that such
title is actually in controversy, and to be
determined. An issue might be made in a
pleading and yet no controversy be made
thereof on the trial, and in such a case, if
the justice otherwise has jurisdiction, it is
his duty to try the case: Malarkey v.
O'Leary, 34 Or. 497, 56 Pac. 521. The
amendment of the justice's code since this
decision was rendered has made the stat-
ute referred to in this case read that "If
it shall appear on the trial
from
the evidence of either party or from the
pleadings," etc. The law as it read, upon
which this decision was based, did not con-
tain the words "or from the pleadings."
The addition of these words, no doubt, an-
nuls the force of this decision.
See § 2218, post.

$ 928. Where Action May be Commenced.

[ocr errors]

In an action to recover a penalty or forfeiture given by statute, the cause of action, or some part thereof, must have arisen within the county where the action is commenced, or upon a lake, river, or other water bordering upon such county and opposite thereto; but otherwise than this the jurisdiction of a justice's court does not depend upon where the cause arose: Provided, that the plaintiff or defendant shall reside in the precinct where the action is commenced, or personal service can be had on the defendant in any precinct in the county: And further provided, that in counties. having a population exceeding eighty thousand inhabitants no action in a justice's court shall be commenced except in the precinct or district where the defendant resides or may be found, and if the defendant do not reside in the state the action may be commenced in any precinct or justice district in the state. [L. 1862; D. Cd. § 883; L. 1865, p. 40, § 12; H. C. § 910; L. 1901, p. 295.]

A justice's court has jurisdiction, without regard to the residence of the parties, when personal service of the summons is made on the defendant in any precinct in the county, although such precinct is not the one in which the action is brought. Such service must be made by the constable of the precinct in which the action is brought: Taylor v. Jenkins, 11 Or. 274, 3 Pac. 681.

The jurisdiction of the justice's court does not depend upon where the cause arose, provided that the plaintiff or defendant shall reside in the precinct where the ac

tion is commenced, or personal service can be had on the defendant in any precinct in the county; and if the defendant does not reside in the state, the action may be commenced in any precinct in the state: Kirk v. Matlock, 12 Or. 319, 7 Pac. 322.

Summons issuing out of a justice's court must be served on the defendant within the county in which the court sits: Pierce v. Rock Creek Min. Co. 37 Or. 342, 61 Pac. 348.

These decisions were made before the amendment of 1901, by which the provision as to counties having a population exceeding eighty thousand was added.

CHAPTER VI.

OF THE INCIDENTAL POWERS AND DUTIES

OF THE COURTS OF

JUSTICE AND THE JUDICIAL OFFICERS THEREOF.

$929. Power of Courts to Preserve and Enforce Order and Obedience. Every court of justice has power,—

1. To preserve and enforce order in its immediate presence;

2. To enforce order in the proceedings before it, or before a person or body empowered to conduct a judicial investigation under its authority; 3. To provide for the orderly conduct of proceedings before it or its officers;

4. To compel obedience to its judgments, decrees, orders, and process, and to the orders of a judge out of court, in an action, suit, or proceeding pending therein;

5. To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto;

6. To compel the attendance of persons to testify in an action, suit, or proceeding therein, in the cases and manner provided by this code;

7. To administer oaths in an action, suit, or proceeding pending therein, and in all other cases where it may be necessary in the exercise of its powers or the performance of its duties. [L. 1862; D. Cd. § 884; H. C. § 911.]

RULES OF COURT.—All courts have certain rights to be exercised for the purpose of methodically disposing of all cases before them. They can establish such rules in relation to the details of the business as shall best serve this purpose, having proper regard for the rights of parties litigant, as guaranteed and recognized by the constitution and the law: Carney v. Barrett, 4 Or. 171; Coyote G. & S. Min. Co. v. Ruble, 9 Or. 121.

And while such rules are in force, unless so provided in them, courts must apply them in all cases, and can not make them applicable in their discretion: Coyote G. & S. Min. Co. v. Ruble, supra.

These rules are binding as well upon the court as upon litigants, and where a rule that written requests shall be in by a certain time, the court can not arbitrarily shorten this time: State v. Birchard, 35 Or. 486, 59 Pac. 468.

The practice as to the allowance of time to file a brief should be liberal, but default in that regard will not be relieved against unless sufficient excuse has been shown for failure to comply therewith: Reynolds v. Jackson County, 33 Or. 422. 53 Pac. 1072, and cases there cited; Garnsey v. County

§ 930. Power, how Exercised.

Court, 33 Or. 201, 54 Pac. 539; Blank v.
Walker, 33 Or. 372, 53 Pac. 1133.

CONTROL OF CONDUCT OF MINISTERIAL OFFICERS.-The sheriff, in a controversy between him and the constable, each claiming to hold the same property under different writs of attachment, has no authority to decide that his levy is subordinate to that of the constable. He should have referred the matter to the court, and followed its directions, as the court has power to direct his actions in that regard: Schneider v. Sears, 13 Or. 75, 8 Pac. 841.

POWER OVER PROCESS AND ADJUDICATIONS.-The trial court at all times possesses the inherent power to amend its judgments, orders, and decrees by nunc pro tunc entry, so as to cause them to conform with the proceedings had therein, and make them speak the truth, provided no rights of third parties have intervened. Such correction may be made by a mere inspection of the record, or by reference to some memorandum of the trial, made at the hearing thereof by the court, or from the pleadings on file, without resorting to evidence aliunde: Cochran v. Baker, 34 Or. 556, 52 Pac. 520, and cases there cited.

For the effectual exercise of the powers specified in the last section, the court may punish for contempt in the cases and the manner provided in this code. [L. 1862; D. Cd. § 885; H. C. § 912.]

§ 931. Judicial Officer, Definition of

- When Disqualified to Act.

A judicial officer is a person authorized to act as a judge in a court of justice. Such officer shall not act as such in a court of which he is a member in any of the following cases:—

1. In an action, suit, or proceeding to which he is a party, or in which he is directly interested;

2. When he was not present and sitting as a member of the court at the hearing of a matter submitted for its decision;

3. When he is related to either party by consanguinity or affinity within the third degree;

4. When he has been attorney in the action, suit, or proceeding in question for either party.

But this section does not apply to an application to change the place of trial, or the regulation of the order of business in court. In the cases specified in subdivisions 3 and 4, the disqualification may be waived by the parties, and, except in the supreme court, shall be deemed to be waived, unless an application for a change of the place of trial be made as provided in this code. [L. 1862; D. Cd. § 886; H. C. § 913.]

$ 932. Judicial Officer not to Act as Attorney Except.

Any judicial officer may act as an attorney in any action, suit, or proceeding to which he is a party or in which he is directly interested. A judge of the county court or justice of the peace, otherwise authorized by law, may act as an attorney in any court other than the one of which he is judge, except in an action, suit, or proceeding removed therefrom to another court for review; but no judicial officer shall act as attorney in any court, or otherwise other than as in this section allowed: Provided, no justice of the peace or county judge or other judicial officer shall have a partner who shall practice law or act as attorney in the court over which he presides. [L. 1862 ; D. Cd. § 887 ; L. 1891, p. 131; H. C. § 914.]

§ 933. Powers of a Judge Out of Court.

A judge may exercise, out of court, all the powers expressly conferred upon a judge as contradistinguished from a court, and not otherwise. [L. 1862; D. Cd. § 888; H. C. § 915.]

§ 934. Power of Judicial Officers.

Every judicial officer has power,

1. To preserve and enforce order in his immediate presence, and in the proceedings before him, when he is engaged in the performance of a duty imposed upon him by this code or other statute;

2. To compel obedience to his lawful orders, as provided in this code; 3. To compel the attendance of persons to testify in a proceeding pending before him in the cases and manner provided in this code;

4. To administer oaths to persons, in a proceeding pending before him, and in all other cases where it may be necessary, in the exercise of his powers and the performance of his duties. [L. 1862; D. Cd. § 890; H. C. $916.]

935. Powers, how Exercised.

For the effectual exercise of the powers specified in the last section, a judicial officer may punish for contempt, in the cases and manner provided in this code. [L. 1862; D. Cd. § 891; H. C. § 917.]

The publication of an article in a newspaper is not a contempt, unless it reflect upon the conduct of the court in reference to a pending suit or proceeding, and tend in some way to influence its decisions

therein, or to impede, interrupt, or em-
barrass the proceedings of the court in
reference thereto: State v. Kaiser, 20 Or.
56, 23 Pac. 964, 8 L. R. A. 584.
See note to § 662 on contempt.

$ 936. Power to Take and Certify Affidavits, Etc.

The judges of the supreme court and circuit courts have power in any part of the state to take and certify,

1. The proof and acknowledgment of a conveyance of real property, or any other written instrument authorized or required to be proved or acknowledged;

2. The acknowledgment of satisfaction of a judgment in any court; 3. An affidavit or deposition to be used in any court of justice or other tribunal of this state;

4. To exercise any other power and perform any other duty conferred or imposed upon them by this code or other statutes. [L. 1862; D. Cd. $892; H. C. § 918.]

§ 937. Power of Other Judicial Officers.

Every other judicial officer may, within the county, city, district, or precinct in which he is chosen,—

1. Exercise the powers mentioned in subdivisions 1, 2, and 3 of the last section;

2. Exercise any other power and perform any other duty conferred or imposed upon him by this code or other statutes. [L. 1862; D. Cd. § 893; H. C. § 919.]

CHAPTER VII.

OF THE SEALS OF THE COURTS OF JUSTICE.

§ 938. What Courts have Seals.

Each of the following courts, and no other, has a seal:

1. The supreme court;

2. Each circuit court;

3. Each county court. [L. 1862; D. Cd. § 894; H. C. § 920.]

§ 939. How Long Present Seals to Continue.

The seals now used by these courts shall continue to be so used until and including the first day of May, 1863. After that day, the seals devised as provided in the next section shall be the seals thereof. [L. 1862; D. Cd. $895; H. C. § 921.]

[merged small][ocr errors][merged small]

At least thirty days before the first day of May, 1863, the secretary of state shall procure and transmit, at the expense of the state, to the clerks of the several courts mentioned in section 938, seals, with the arms of the state engraved in the center thereof, and with the following inscription surrounding the same:

County, State of

1. For the supreme court, "Supreme Court, State of Oregon;" 2. For the circuit court, "Circuit Court, Oregon," inserting the name of the particular county;

3. For the county court, "County Court, Oregon," inserting the name of the particular county. $ 896; H. C. § 922.]

§ 941. Clerk to Keep Seal and Affix it When Required.

County, State of [L. 1862; D. Cd.

The clerk of each court mentioned in section 938 shall keep the seal thereof, and affix it to any process, transcript, certificate, or other paper required by this code or other statute. [L. 1862; D. Cd. § 897; H. C. § 923.]

[merged small][merged small][merged small][merged small][ocr errors][merged small]

The sittings of every court of justice are public, except as provided in this section. Upon the agreement of the parties to a civil action, suit, or proceeding, filed with the clerk or entered upon the journal, the court may direct the trial of an issue of law or fact, or any other proceeding therein, to be private; and upon such order being made, all persons shall be excluded, except the officers of the court, the parties, their witnesses, and counsel. [L. 1862; D. Cd. § 898; H. C. § 924.]

See Oregon Constitution, Art. I, § 11.

§ 943.

Circuit Judge May Hold Court in Any District.

Each of the several circuit judges of this state shall have authority to hold circuit courts in any of the judicial districts of the state, where, for any reason, the circuit judge elected for such district can not attend, or is disqualified to try any cause pending therein at the time appointed for holding said court or trying said cause. [L. 1880, p. 48, § 1; H. C. § 925.]

$ 944. Judges May Make Orders Out of District.

In the absence of any circuit judge from his judicial district, or from any county in such district, whereby inconvenience or delay would be occasioned in obtaining orders from him in any suit or action pending therein, or in case of his inability to act, any other circuit judge, whether within or without such district, may grant all necessary orders, to have effect in any

« PreviousContinue »