Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-19

view the action of an inferior tribu-
nal. Pursuant to a petition for a
writ of review the writ was issued
and the return shows that L. D.
Krake commenced an action in the
county court Of Tillamook county
against George N. Hodgdon and Mar
vim Hodgdon to recover 1867 as dam
ages for an alleged breach of an
agreement. An amended complaint
was filed October %, 1909, and SER
vice thereof acknowledged on that
day but no order was ever made pre-
scribing the time in which an an
swer should be filed. The averments
of the amended compliant not having
been controyerted the county clerk,
on the plaintiffs written application,
recorded a default December 1S,
1909, and thereupon entered judg-
ment against the defendants for the
sum demanded. Three days thereaf-
ter a motion was interposed to set
aside the judgment on the grounds
that II was rendered through sur
prise, inadyertance and excusable
neglect, in that an agreement had
been made by the parties whereby no
answer was to be filed during nego-
tiations for a settlement of the con-
troversy which were then pending,
nor until one of the defendants at
torneys, who was absent, returned
not later than December 81, 1909, and
that he had not arrived when the
judgment was entered. The motion
was supplemented by an affidavit and
an answer to the merits was ten
dered.
Plaintiffs counsel filed a counter
affidavit which sets forth that it was
understood that no answer was to be
filed until December Is, 1909.
Defendants counsel on December
20, 1909, filed another motion to set
aside the judgment for that no time
had been fixed by the court in which
to answer and that their clients had
never been in default-supplementing
the application by an affidavit.
The county court on January II,
1910, denied the motion, to review
which order these proceedings were
instituted by George N. and Marvin
Hodgdon against H. F. Goodspeed
and J. C. Holden as county Judge
and clerk respectively and L. D.
Krake. The record, papers, etc,
having been certified up to the cir
cult court, the judgment of the coun-
ty court was annulled and the cause
remanded with directions to fix a
time in which the answer in such ac-
ton should be filed and from the lat
ter judgment Krake alone appeals.
Moore, j. 1t is insisted that the
petition for the review did not state
facts sufficient to authorize the issu-
ance Of the writ, in refusing to Quash
which an error was committed. A
petition in such case must describe
with convenient certainty the deci-
sion or determination of the inferior
court, officer or tribunal complained
of; set forth the errors alleged to
have been committed; be signed by
the plaintiff or his attorney and veri-
fed by the certificate of an attorney
of the court to the effect that he has
examined the process or proceeding
and the decision or determination
therein, and that the same Is errone-
Gus as alleged in the petition. The
petition, the sufiiciency of which is
assailed, alleges in effect that the de-
PENDANTS in the proceeding, Good
speed and Holden, are the county
judge and clerk respectively of Tilla-
nook county; sets out copies of all
the papers filed in the action men
toned and the orders made and judg-
ment rendered therein as hereinbe-
fore stated; AYERS that the county
court exercised its judicial functions
enormously and exceeded its juris-
dlction to the injury of the substan-
tial rights of the plaintiffs herein
setting forth in concise order the err
rors alleged to have been committed
The petition is also verified by the
certificate of an attorney of the court
in the manner prescribed.
The adverse parties and the court
were thus advised of the particular
questions to be determined, and the
errors alleged to have been commit
ed are assigned with particularly
! A w. Clio