of entry in journal; when docketed; appeal, when taken; Oct. 11, 1862, decision on appeal; satisfaction, when entered. $562. 563. kept. § 573. [563.] The execution docket is a book wherein Oct. 11, 1862, the clerk shall note, under the title of every cause, the Execution issue and return of execution, and generally the filing docket, how or return of any paper or process, or the making of any order, rule, or other direction therein, from and after 16 Or. 117. the entry of judgment or decree, until satisfaction or performance thereof. § 564. § 574. [564.] The fee-book is one wherein the clerk oct. 11, 1862, shall enter, under the title of every cause, against the Fee-book, party to whom the service is rendered, the clerk's fees what to be enearned, and received or not received, and none other, except as specially directed by this code. tered in. $565. § 575. [565.] The final record is a book wherein the Oct. 11, 1862, clerk shall record the papers, pleadings, and proceedings in a cause, as elsewhere provided in this code. Final record. $566. § 576. [566.] The jury-book is one wherein the clerk oct. 11, 1862, shall enter the names of the persons attending upon the court at a particular term as grand or trial jurors, the how kept. time of the attendance of each, and when discharged or excused, and the amount of fees and mileage earned by each. § 567. § 577. [567.] The files of the court are all papers or Oct. 11, 1862, process filed with or by the clerk of the court, in any action, suit or proceeding therein or before the judge what are. thereof. Files of court, $568. Custody of rec § 578. [568.] The records and files of the court are Oct. 11, 1862, to be kept in the clerk's office, in the custody of the clerk, and he is responsible for them. They shall not be taken ords and files. out of the office by any one, except by the judge of the court or an attorney thereof, when allowed by special order of the court or judge, or some general rule therefor prescribed by the court and entered in the journal. $569. § 579. [569.] Whenever requested, the clerk shall oct. 11, 1862, furnish to any person a certified copy of any portion of such records or files, and no person other than such clerk amination of is entitled to make such copy, or to the use of the records files. Search and ex records and Oct. 11, 1862, $566. Search and ex records and or files for such purpose. Whenever requested, the clerk shall search such records and files, and give a certificate amination of thereof according to the nature of the inquiry, and no person other than such clerk or an attorney of the court shall be entitled to search and examine such records or files, unless he be a party in interest, as appears of record, concerning the matter sought to be examined or inquired of. files. CHAPTER VII. OF SPECIAL PROCEEDINGS. TITLE I.-OF THE WRIT OF REVIEW. III. OF THE WRIT OF HABEAS CORPus. IV. OF THE PUNISHMENTS OF CONTEMPTS. GENERAL PROVISIONS CONCERNING SPECIAL PROCEEDINGS. § 580. Parties to special pleadings, how known. § 581. Judgment, order and motion in, definition of. § 580. [570.] The party prosecuting a special proceeding shall be known as the plaintiff, and the adverse party as the defendant. § 581. [571.] A judgment in a special proceeding is the final determination of the rights of the parties therein. The definition of a motion and an order in an action are applicable to similar acts in a special proceeding. § 586. Undertaking of plaintiff. § 587. To whom the writ directed, and return thereto. Stay of proceedings. $588. Stay of proceedings; when returnable; may be tried in vacation. § 589. When and by whom writ issued. How served and proof thereof. $590. Incomplete return. Limitation of writ. § 591. Power of court of review; its judgment may be appealed from. § 572. Writ of review or certiorari. $573. § 582. [572.] The writ heretofore known as the writ oct. 11, 1862, of certiorari is known in this code as the writ of review. § 583. [573.] Any party to any process or proceeding before or by any inferior court, officer, or tribunal Oct. 11, 1862, may have the decision or determination thereof reviewed for errors therein as in this title prescribed, and not prosecute. otherwise. Upon a review, the court may review any 14 Or. 375. intermediate order involving the merits and necessarily affecting the decision or determination sought to be reviewed. See § 585 [575], post. Who may $1. § 584. [574.] The writ shall be allowed by the cir- Oct. 24, 1882, cuit court or judge thereof, or by the county court or Laws of 1882, judge of the county wherein the decision or determina- By whom tion sought to be reviewed was made, upon the petition allowed. of the plaintiff, describing the same with convenient certainty, and setting forth the errors alleged to have been committed therein. Such petition shall be signed by the plaintiff or his attorney, and verified 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 erroneous as alleged in said petition. 14 Or. 208. § 585. [575.] The writ shall be concurrent with the Feb. 25, 1889. §1. right of appeal, and shall be allowed in all cases where when allowed. the inferior court, officer, or tribunal in the exercise of judicial functions appears to have exercised such functions erroneously, or to have exceeded it or his jurisdic- St. 1989, p. 135. tion, to the injury of some substantial right of the plaintiff, and not otherwise. Certiorari or writ of review generally. Writ discretionary. the application for this writ is addressed to the discretion of the court, and ought not to be granted where Oct. 11, 1862, $,575. quences would ensue, and where, upon such reversal of proceedings, parties cannot be placed in statu quo: Keys v. Supervisors of Marin Co., 42 Cal. 252; Hagar v. Supervisors of Yolo Co., 47 Id. 228; Rutland v. Comm'rs of Worcester, 20 Pick. 79; Duggen v. McGruder, 1 Miss. 112; People v. Andrews, 52 N. Y. 445. The object of the writ is to annul, not to restrain, and in such proceeding the court cannot take cognizance of things in fieri; therefore a resolution in a board of supervisors cannot be reviewed under a writ of certiorari: Lamb v. Schottler, 54 Cal. 319. Many matters formerly presentable by various bills in chancery may be brought by original suit: White v. Allen, 3 Or. 104. Writ will not lie when there is appeal: Evans v. Christian, 4 Or. 375; for they are not concurrent remedies: Seller v. Corvallis, 5 Id. 273; both overruling Schiratt v. Philippi, 3 Id. 484. To the point that they are not concurrent remedies, see People v. Shepard, 28 Cal. 117; People v. Turner, 1 Id. 152; S. C., 52 Am. Dec. 293; Gray v. Schupp, 4 Cal. 185; Clary v. Hoagland, 13 Id. 173; Newman v. Superior Ct., 62 Id. 545; Golden Gate H. M. Co. v. Superior Ct., 65 Id. 187; Slavonic M. B. A. v. Superior Ct., 65 Id. 500. Certiorari will not bring up evidence, but only the record of the court below: Canyonville & G. R. Co. v. Douglas Co., 5 Or. 281. Facts will not be tried under the writ: Douglas Co. R. Co. v. Douglas Co., 6 Id. 299; Poppleton v. Yamhill Co., 8 Id. 837. Writ, when lies. — Certiorari lies only to review judicial, and not ministerial, proceedings: Thompson v. Multnomah Co., 2 Or. 34. The party, to be entitled to the writ, must be concluded by the judgment: Canyonville & G. R. Co. v. Douglas Co., 5 Id. 281. There must have been an excess of jurisdiction before the court can interfere: Clary v. Hoagland, 5 Cal. 478; Coulter v. Stark, 7 Id. 245; Henshaw v. Supervisors Butte Co., 19 Id. 157; Wratten v. Wilson, 22 Íd. 468; People v. Johnson, 30 Id. 101; Winter v. Fitzpatrick, 35 Id. 269; Muir v. Superior Court, 58 Id. 361; Hutchinson v. Superior Court of Inyo Co., 61 Id. 119; Barnett v. Fifth District Court, 2 West Coast Rep. 630. The only question is, Has the inferior tribunal exceeded its jurisdiction? People v. Dwinelle, 29 Cal. 632; C. P. R. R. Co. v. Placer Co., 46 Id. 667; Winter v. Fitzpatrick, 35 Id. 269. Error in the exercise of the court's jurisdiction is not a proper case for the writ: Alexander v. Municipal Court, 66 Id. 387. Therefore its office is to bring up for review final determinations and adjudications: Wilson v. Sacramento, 3 Id. 387; Lynde v. Noble, 20 Johns. 80; Noble v. Board of Pilots, 37 Barb. 126; Devlin v. Platt, 20 How. Pr. 167; People v. County Judge, 40 Cal. 480. Exceeding jurisdiction in punishing for contempt: See Ex parte Hollis, 59 Id. 405. Judgment rendered in the absence of and without notice to the defendant is not in excess of jurisdiction: Cereghino v. Finochino, 54 Id. 603. Whether, in partition suit, the court exceeds its jurisdiction in appointing a receiver, see Goodale v. Fifteenth District Court, 56 Id. 26; Shimmins v. Fifteenth District Court, 57 Id. 148. An insolvency court appointing a receiver before the assignee is appointed does not act in excess of its jurisdiction: Von Roun v. Superior Court, 58 Id. 358. Where, in a proceeding for the condemnation of land, the district court makes an order which it has no jurisdietion to make, in relation to the use of the property sought to be condemned, and there is no appeal from the order, certiorari is the proper remedy. The fact that the trespass may be enjoined in equity does not prevent the order from being reviewed on certiorari: Cal. P. R. R. Co. v. Cent. P. R. R. Co., 47 Cal. 528. But if there is a remedy in the lower court in such proceedings, as on motion to prevent the plaintiff from taking possession before order of court, the writ will not lie: In re Bryan, 65 Id. 375. Revoking probate of will on petition of certain heirs is not a proper case for certiorari: Cunningham v. Superior Ct., 57 Id. 148. Mere irregularity intervening in the exercise of an admitted jurisdiction, mere mistakes of law committed in conducting the proceedings in an inquiry which the tribunal had authority to entertain, are not to be considered in certiorari, otherwise that writ would be turned into a writ of error: C. P. R. R. Co. v. Board of Equalization of Placer Co., 46 Cal. 667; People v. Burney, 29 Id. 459; People v. Dwinelle, 29 Id. 632; People v. Board of Delegates of the S. F. Fire Department, 14 Id. 479. Unless, perhaps, in cases where there are circum stances of an extraordinary character: Keys v. Marin Co., 42 Id. 254. The fact that the question brought up is new, affecting many people, and one of great public interest, is not sufficient reason for the supreme court to entertain a writ of review as an original proceeding: Hagar v. Supervisors, 50 Id. 473. If there is any other plain, speedy, and adequate remedy the writ will not lie: People v. Turner, 1 Id. 152; S. C., 52 Am. Dec. 295; Whitney v. B. of D. etc., 14 Cal. 498. What reviewable on certiorari. Errors of law cannot be corrected on certiorari, even if there be no appeal. The court below must have exceeded its jurisdiction; if it had jurisdiction, but decided wrongly, certiorari will not lie: People v. Burney, 29 Cal. 460; People v. Dwinelle, 29 Id. 635; Barber v. San Francisco, 42 Id. 630; Yenawine v. Richter, 43 Id. 312; Petty v. County Court San Joaquin, 45 Id. 246; Monreal v. Bush, 46 Id. 79; Alexander v. Mun. Ct. of Ap., 4 West Coast Rep. 299. Nor can errors of judgment be reviewed on certiorari: C. P. R. R. Co. v. Placer Co., 46 Cal. 670; Reynolds v. San Joaquin Co. Court, 47 Id. 604. The writ lies to review an order setting aside an answer: Long v. Sharp, 5 Or. 438. Writ was denied in the following cases: Where the court refused to strike out a bill of costs claimed to have been filed too late: Dezerillo v. Superior Ct., 59 Cal. 180; where the court denied the defendant's motion to quash the summons: Desmond v. Superior Ct., 59 Id. 274; where the superior court allowed the plaintiff, on appeal from the justice's court, to amend his complaint: Kitts v. Superior Ct., 62 Id. 203; Ketchum v. Superior Ct., 3 West Coast Rep. 490; where the judgment sought to be reviewed has been entirely satisfied: Morton v. Superior Ct., 3 Id. 488; where the court directed the assignee in insolvency to pay out certain moneys: Brown v. Superior Ct., 3 Id. 30. Rehearing. -There is no such thing as a rehearing after judgment on a writ of review. The case is heard upon the return made to the writ, and the only question upon the return is whether the court, whose judgment or order is the subject-matter of review, pursued its jurisdiction. The judgment rendered on that question is reviewable only on appeal: Alexander v. Mun. Ct. of Ap., 66 Cal. 387. Decisions of municipai board, etc., Oct. 11, 1862, reviewable. -The acts of inferior tri- $575. bunals, as of officers acting in a judicial capacity only are reviewable: Burnett v. Douglas Co., 4 Or. 388. As to the saying that acts in the exercise of judicial functions only are reviewable, it is said that this is not always to be received in the sense usually applied to courts of justice. Thus, Judge Bronson speaks in Supervisors etc. v. Briggs, 2 Denio, 26, of the settlement and allowance of an account by the board as an adjudication of the matter by a proper tribunal, and therefore conclusive: Gillespie v. Broas, 23 Barb. 370; People v. Mayor of New York, 5 Id. 45; People v. Supervisors of El Dorado Co., 8 Cal. 58; Robinson v. Supervisors of Sacramento, 16 Id. 209, 213. The decision of a county clerk or of an assessor is the decision of a tribunal from whose decision a writ of review will lie: Rhea v. Umatilla Co., 2 Or. 298. A writ may be prosecuted to review the order of a board of equalization of a county correcting the assessment of an individual tax-payer: Poppleton v. Yamhill Co., 8 Id. 337. Certiorari lies to the county court to bring up and review its proceedings in laying out a public highway: Thompson v. Multnomah Co., 2 Id. 34. The courts have power to review on certiorari the action of a board of supervisors in such a matter as granting a ferry license: Murray v. Supervisors Mariposa Co., 23 Cal. 495; Waugh v. Chauncey, 13 Id. 11; Fall v. Paine, 23 Id. 302. And that the writ may be used to restrain the excessive judicial acts of municipal boards generally, see also People v. Supervisors, 8 Id. 59; S. V. W. W. v. Bryant, 52 Id. 132. A citizen and tax-payer of a county may sue out the writ to annul acts of the supervisors in excess of the jurisdiction of the board when exercising judicial functions: Maxwell v. Supervisors of Stanislaus Co., 53 Id. 389. Judgments and orders of a board of supervisors cannot be attacked in a collateral action: Fall v. Paine, 23 Id. 303. performance of a ministerial act by a judicial officer does not constitute the act itself an exercise of judicial functions: People v. Bush, 40 Id. 344; Myer v. Hamilton, 60 Id. 289; State v. Third Dist. Ct., 18 Nev. 438. As to gov ernmental boards exercising mixed authority, the office of certiorari is to review only such proceedings as are The |