Marley and Noble were requested by Olsen | ment, or by accepting the benefits thereof. to join with him in an appeal from the de- Moore v. Floyd, 4 Or. 260; Portland Const. cree, but they refused, and the latter, claim- Co. v. O'Neil, 24 Or. 54, 32 Pac. 764: Ehrman ing that his rights were joint with, and sub- v. Astoria Ry. Co., 26 Or. 377, 38 Pac. 306. ject to, the rights of his codefendants, ap- In the last case cited it was held that the pealed, joining in the notice with himself right to appeal from a decree refusing to Marley and Noble as appellants over their foreclose a mechanic's lien is waived by protest, all of which facts he has recited in bringing an attachment action after the enhis notice. try of the decree, when the right of attachment is conditioned upon the fact that the Geo. S. Shepard, for appellants. E. B. Sea- claim is not secured by any lien or mortgage. brook, for respondent. Kansas City, etc., Ry. Co. v. Murray, 57 Kan. SLATER, C. (after stating the facts as above). Plaintiff moves to dismiss the appeal on the ground that, subsequent to the rendition of the decree, and before the appeal, Olsen took from M. W. Parelius, who is plaintiff's grantee, a lease of the premises in dispute, thereby recognizing and acknowledging the validity of the decree, and estopping himself from further contesting the title and right to the enjoyment of the premises by plaintiff and those in privity with her. It appears from the affidavits of Parelius in support of the motion, and from Olsen's in answer thereto and the former's reply, that on August 21, 1906, which was after the cause had been submitted, Parelius received from plaintiff a conveyance of lot 5 and the wharfage rights claimed to be appurtenant thereto, in pursuance of a contract of purchase entered into between them prior to the origin of the suit; that the deed was recorded, of which Olsen had knowledge; that on April 26, 1907, and after the entry of decree, Olsen entered into a written contract of lease with Parelius respecting the property rights in dispute. The contract is mutual in its covenants, and was executed by both parties under seal. By its terms Parelius, for the consideration of $2 per month, to be paid lessees the rent due them to the by Olsen, leased to the latter the right and transfer. It was held, on motion to privilege of mooring and keeping for two the appeal, that by assigning the left to months a certain scow or houseboat owned by Dudding after the rendition of the judg him upon certain premises, described as being "between ordinary high-water mark in the Willamette river and the established harbor line of said river and abutting upon lot 5 in block 2 in East Portland," etc., being the identical property and rights in litigation herein. In consideration of the lease Olsen therein agreed to pay the monthly rent in advance, beginning on May 1, 1907, and that at "the expiration of said term he will quit, vacate, and surrender up said premises to Parelius." It is stated in the latter's affidavit that one month's rent was paid. This is denied by Olsen; but it appears to be uncontroverted by him that he continued in the possession of the leased premises, and has never at any time offered to surrender them up to Parelius. A party to an action may, by his acts subsequent to a judgment or order against him, waive his right to have such right or order reviewed by an appellate court, as by ac Afterwards they receive dismiss and by accepting rent due thereunder By As to whether or not appellant paid one month's rent under the lease is not so material here, for he agreed to pay for, and he occupied and enjoyed, the use of the premises as a consideration of his promise. the execution of this contract, and the continued enjoyment of the premises thereunder, appellant became by his own voluntary act the tenant of Parelius, and thereby effectually estopped himself from further disputing the latter's title. Jones v. Dove, 7 Or. 467. Plaintiff has sought to avoid the effect of the lease by claiming that the lease was fraudulently obtained from him by Parelius, with an intent to cheat and defraud him out of [Ed. Note.-For other cases, see Certiorari, he lease was signed by him at the special in- | thereof that the inferior court or tribunal acted stance and request of Parelius at a time without jurisdiction or has exercised its funcwhen he (Olsen) was on the east side of the tions erroneously; and hence it must state every fact bearing upon the errors claimed, that iver, and had no opportunity of consulting from an inspection thereof, assuming the facts is attorney, and that Parelius at the time stated to be true, the court can say there was nformed him that it could not, and would error upon which to issue the writ. 1ot, in any way affect his rights on appeal. Cent. Dig. §§ 66-82; Dec. Dig. § 42.*] The facts disclosed show, however, that two ›r three days intervened between the time 3. CERTIORARI (§ 58*)—WRIT OF REVIEW-RECvhen the agreement to lease was first oralWhen a writ of review is issued and return y made, with an understanding that Pa- made, the court must look to the record containelius was to have the same thereafter re-ed therein to determine whether any of the erluced to writing and to present it to Olsen or execution, during which time the latter ad opportunity to consult his attorney if le deemed it necessary; and, as to the repesentations which Olsen says were made to im by Parelius as an inducement to secure he execution of the instrument, and on vhich he says he relied, even if uncontroverted, which is not the case, they amount to no nore than an expression of an opinion by Parelius as to the law applicable to the conract when executed, and of that matter one Darty was as able to judge as the other. Each party must be presumed to have known he law, and a mistake in respect thereto urnishes no ground for setting aside the intrument executed under such circumstances, r for disregarding its legal effect. But the acts are disputed by Parelius, who says he ad no such conversation with Olsen. The ffect of the decree was to require Olsen to acate the premises, but he failed to comply herewith, and was charged with contempt f court. He says that he was preparing to -ppeal. Had he done so promptly, and given he necessary undertaking provided by statte, he could have stayed further proceed ngs against himself. In answer to the harge he disclaimed any intentional disbedience of the decree, and promised to omply with it. He was then given five days n which to purge himself of contempt by acating the premises, whereupon he applied › Parelius to lease the privilege of keeping is scow where it was, which resulted in the greement stated. He afterwards perfected his appeal. In our judgment there are not sufficient acts stated by Olsen to avoid the estoppel et up, and it follows that the motion to dis miss should be allowed. 3 Or. 203) RAPER v. DUNN, County Judge, et al. (Supreme Court of Oregon. Feb. 9, 1909.) WORDS AND PHRASES "PARTY." A party to an action or suit is one who is rectly interested in the subject-matter in ise, who has a right to make a defense, control e proceedings, or appeal from the judgment uoting 6 Words and Phrases, p. 5203). CERTIORARI (§ 42*)—"WRIT OF REVIEW”— "PETITION"-PURPOSE ESSENTIALS. The purpose of a petition for a writ of reew is to show prima facie from an inspection rors assigned are well taken, and will not try any questions not disclosed by the record as entered by the return, and hence under B. & C. Comp. § 595, providing that any party to a process or proceeding before or by an inferior viewed for errors therein, the writ was propcourt, etc., may have the decision thereof reerly dismissed where the record did not disclose that the petitioner was an interested party, though the petition for the writ showed that fact. [Ed. Note. For other cases, see Certiorari, Cent. Dig. § 146; Dec. Dig. § 58.*] Appeal from Circuit Court, Gilliam County; E. V. Littlefield, Judge. Petition by G. W. Raper for a writ of review against Edward Dunn, county judge, and others. From an order dismissing the writ, the petitioner appeals. Affirmed. W. H. Wilson and D. R. Parker, for ap pellant. J. E. Burdett, Dist. Atty., Jay Bowerman, and H. S. Wilson, for respondents. KING, C. This is an appeal from an order or the circuit court for Gilliam county dismissing a writ of review taken for the purpose of testing the effect upon the local option law of a section of the charter of Condon, purporting to exempt that place from the operation of the general law of the state adopted through the initiative concerning the sale or disposition of intoxicating liquors in that county. It appears that at the general election in June, 1908, pursuant to an order properly entered, a vote was taken on whether the sale of intoxicating liquors should be prohibited in Gilliam county, in which Condon is situated, resulting in a declaration for prohibition by a majority of 36 votes, pursuant to which an order was by the county court duly made declaring the result thereof, and prohibiting the sale of intoxicating liquors in the county except for medical purposes, etc. The validity of such order is questioned by this proceeding. It is first maintained that plaintiff has not invoked the proper remedy, which, if tenable, makes a consideration of the other points unnecessary, and not properly entitled to determination in this proceeding. B. & C. Comp. § 595, provides: "Any party to any process or proceeding before or by an inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors therein, as in this chapter prescribed, and not otherwise. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes The question then arises: Is the petitioner et al. (53 Or. 552) - OB (Supreme Court of Oregon. Feb. 16, 1909.) 1. MUNICIPAL CORPORATIONS (§ 514*)-SPECIAL IMPROVEMENTS - REASSESSMENT JECTIONS HEAR AND Determine. Portland Reincorporation Act (Sp. Laws 1903, p. 161) § 400, prescribes the manner of making a reassessment for a local improvement when the original assessment has been set aside, or when the council is in doubt as to its validity, and directs that notice shall be given to the owners of property who within 10 days may file their objections, and at the time appointed the council shall "hear and determine" all objections so filed. Held, that the words "hear and determine" imported a judicial investigation and settlement of an issue of fact implying the weighing of testimony offered by both parties, and hence the statute was not complied with by the council's committee on streets, after being a reference of objections to a reassessment to read and the adoption of the committee's report that the objections be placed on file and the reassessment affirmed (citing 4 Words & Phrases, p. 3235). for the writ of review a party under the APPLEGATE et al. v. CITY OF PORTLAND above provision? "A party to an action or suit is one who is directly interested in the subject-matter in issue, who has a right to make a defense, control the proceedings, or appeal from the judgment." 6 Words & Ph. p. 5203; United States v. Henderlong (C. C.) 102 Fed. 2, 4; Robbins v. Chicago City Ry. Co., 4 Wall. 657, 672, 18 L. Ed. 427; Fox v. West, 1 Idaho, 782. The petition for the writ discloses "that the plaintiff herein has a license authorizing him to engage in the business of retailing liquor in the city of Condon, in said county and state, and to sell at retail all kinds of liquors mentioned in the charter of the city of Condon, and that the plaintiff has had the said license during all the times in this complaint mentioned." But, in the absence of some interest disclosed by the return to the writ, is this sufficient for the purpose of this proceeding to indicate that the plaintiff is a party hereto? The purpose of a petition is to show prima facie from an inspection thereof that the inferior court or tribunal acted without jurisdiction, or has exercised its functions erroneously. Southern Or. Co. v. Coos Co., 30 Or. 250, 47 Pac. 852; School Dist. v. Irwin, 34 Or. 431, 437, 56 Pac. 413. It must accordingly state sufficient facts bearing upon the errors claimed that from an inspection thereof, assuming the facts stated to be true, the court can say there was error upon which to issue the writ; but, when the writ is issued and return made, the court must look to the record contained therein to determine whether any of the errors assigned are well taken, and the court will not try any questions except such as are disclosed by the record presented by the return. Curran v. State (decided February 2, 1909) 99 Pac. 420; French v. Harney County, 33 Or. 418, 54 Pac. 211; Tyler v. State, 28 Or. 238, 42 Pac. 518. Corporations, Dec. Dig. § 514.*] 2. MUNICIPAL CORPORATIONS (§ 513*) — SPE CIAL ASSESsments-Nature of PROCEEDING. An attempt by a municipal authority to subject private property to the burden of an assessment for a local improvement is a proceeding in invitum, to uphold which against a direct attack it must appear from an inspection of the record that the statutory requirements prescribed as a condition precedent to the exercise of the power have been observed. Corporations, Dec. Dig. § 513.*] SITY OF IMPROVEMENT-DETERMINATION. An objection to the necessity and propriety of making an improvement is a question for the exclusive determination of the city council. Corporations, Dec. Dig. § 299.*] [Ed. Note.-For other cases, see Municipal Appeal from Circuit Court, Multnomah County; M. C. George, Judge. Proceeding by James Applegate and others against the City of Portland and others to review a reassessment for special improvements. From a judgment of dismissal, plaintiffs appeal. Reversed and remanded, with directions. ents. Assuming the statement quoted from the petition to be true, plaintiff would be an interested party, but nothing appears in the record of the proceedings sought to be reviewed disclosing such interest; and, as statRalph R. Duniway, for appellants. J. P. ed, we must look to the record alone to de-Kavanaugh and Frank S. Grant, for respondtermine whether plaintiff is a party to the proceeding. Had plaintiff appeared at the MOORE, O. J. This is an appeal by the time or before the order declaring prohibition plaintiffs from a judgment dismissing a spein Gilliam county was made, and the records cial proceeding instituted to review the acdisclosed this fact, he would have been an tion of the council of the city of Portland in interested party; but there is nothing there- attempting to reassess certain real property in to indicate that he is an interested party for benefits resulting from the improvement any more than any taxpayer or citizen of the of a street. The circuit court for Multnomab county might be deemed such; and he is ac- county, pursuant to a petition therefor, causcordingly not entitled to maintain the pro-ed to be issued a writ of review, the returD ceeding. In re Holden, 37 Minn. 362, 34 N. W. 336; Washington Co. Abst. Co. v. Stewart, 9 Idaho, 376, 74 Pac. 955. to which, as disclosed by the transcript, sets forth certified copies of the proceedings relating to such improvement showing that on The judgment of the court below must ac- November 2, 1904, a resolution was adopted, cordingly be affirmed. the preambles to which stated that the coun cil was in doubt as to the validity of the ment: "At the time appointed in such noassessment for the improvement of Albina tice the council shall hear and determine all avenue from the north line of Page street objections which have been filed by any party to the center line of River street in that interested." It will be remembered that the city; and also that it appeared that the prop- record of the council shows that the objecerty thereinafter described was specifically tions interposed by the plaintiffs were read and distinctly advanced in interest by the and referred to the committee on streets improvement, whereupon it was determined which reported that having had the same unthat certain parcels of land abutting upon the der consideration they recommended "that avenue mentioned constituted the property said objections be placed on file," which reand the boundaries thereof-the district spe- port was adopted by the council. These obcially and peculiarly benefited by the better- jections having been "read," the council eviment of the street. It was further declared dently "heard" them in the popular sense in the resolution that within 10 days from of giving heed to the perusal, but no deterthe adoption thereof the city auditor should mination of the objections was made except prepare a preliminary assessment and reas- to place them on file. The power to "hear sessment upon the lots, blocks, and parcels of and determine" is an essential ingredient of land within the district so benefited, and jurisdiction, and the quoted words refer to a give notice to the property owners affected | judicial investigation and settlement of an by such reassessment in the manner prescrib- issue of fact, which implies the weighing of ed by the city charter. It was also ordered testimony offered by both sides, from a conthat the time within which objections should sideration of which the relief sought by the be made to the reassessment be limited to moving party is either granted or denied. 4 December 7, 1904. Conformable to such reso- Words & Ph. p. 3235. Though the record lution, the city auditor made assessments fails to show that the council sustained or upon the several tracts of land, aggregating | overruled the objections, it is argued by de$11,513.78, which sum, it was maintained, fendants' counsel that, by invoking the preaccrued to the entire property by reason of the street improvement. Within the time limited the plaintiffs herein filed with the city auditor joint written objections to the reassessment of their real estate, assigning various exceptions to the procedure employed to burden their property with the benefits alleged to have been bestowed. The objections so interposed were read by the council and referred to the committee on streets, which reported the matter back with the recommendation that the assessment as made by the auditor be approved: "Your committee submits herewith an ordinance making said reassessment, and further recommends that said ordinance do pass and that said objections be placed on file." This report was adopted by the council, which passed the ordinance so proposed. sumption that official duty has been regularly performed, no error was committed in dismissing the proceedings. An attempt on the part of municipal authority to subject private property to the burden of an assessment for a local improvement is a proceeding in invitum, to uphold which against a direct attack it must appear from an inspection of the record of the tribunal that the statutory requirements prescribed as a condition precedent to an exercise of the power conferred have been observed. Smith v. Portland, 25 Or. 297, 35 Pac. 665; Strout v. Portland, 26 Or. 294, 38 Pac. 126; Bank of Columbia v. Portland, 41 Or. 1, 67 Pac. 1112; Oregon Transfer Co. v. Portland, 47 Or. 1, 81 Pac. 575, 82 Pac. 16. "In levying special assessments for benefits received the record," says a text writer, "must affirmatively show a compliance with all essential conditions to a valid exercise of the taxing power, that the assessment does not exceed the benefit, and any omission of such facts will not be supplied by presumption." Hamilton, Sp. Assess. § 480. The objections referred to contain many statements that cannot be denominated assertions of fact, but present legal questions in the nature of demurrers which challenge the validity of the proceedings adopted by the council to reassess the plaintiffs' property. The objections also assail the propriety and necessity of making any improvement of Albina avenue-a question that was for the council alone to determine. The facts thus stated form a brief synopsis of the proceedings involved herein, and from an examination of such record alone it is to be determined whether the council in exercising judicial powers have, to the injury of some substantial right of the plaintiffs, employed such functions erroneously. B. & C. Comp. § 597. The solution of this question depends upon a consideration of a clause of the municipal charter that was in force when the plaintiffs' objections were filed. Section 400 of the act of reincorporation of the city of Portland (Sp. Laws 1903, p. 161), prescribes the manner of making a reassess ment for any local improvement that has been set aside, or, when the council is in doubt, as to the validity of such assessment, A few averments of fact, however, were and directs that notice thereof shall be given made in the exceptions which ought to have to the owners of the real property affected been "heard and determined"; but by reason thereby or having any interest therein who of the failure of the council to observe the may within 10 days file with the auditor plain mandate of the city charter the judgtheir objections in writing to such assessment is reversed, and the cause remanded, with directions to set aside the proceedings | sel may have an opportunity further to argue instituted to reassess the property for the the case, if they so desire. street improvement. The motion for a rehearing will be sustained. In a criminal case, where the defendant appeals from a judgment of conviction and no briefs are filed or argument presented. and where a dismissal of appeal is filed by the defendant, this court will not examine the record the appeal. as presented, but will make an order dismissing [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2971; Dec. Dig. § 1131.*] (Syllabus by the Court.) Error from District Court, Canadian County; Joseph G. Lowe, Judge. Elmer Hiteshew was convicted of grand larceny, and he appeals. Appeal dismissed. C. D. Watkins, for appellant. Chas. L Moore, Asst. Atty. Gen., for the State. The appellant, George W. Green, was indicted for the murder of Martin Liston within the Central District of the Indian Territory. The trial was had in the United States District Court at Atoka, Indian Territory, and on October 20, 1904, he was found guilty of murder without capital punishment. On October 24, 1904, defendant filed a motion for a new trial, which motion was overruled. On November 1, 1904, defendant was sentenced to imprisonment for life in the federal penitentiary. The case was then taken by writ of error to the United States Court of Appeals for the Indian Territory, at South McAlester, where, on September 26, 1907, the judgment of the lower court was by said appellate court affirmed. There- PER CURIAM. The plaintiff in error was upon a petition for rehearing was filed, convicted in the district court of Canadian which petition was still pending upon the county for the crime of grand larceny, and passing of that court with the organization was on the 25th day of April, 1908, sentenced of the state of Oklahoma. The case was, to serve a term of five years in the penitenunder the provisions of the enabling act and tiary. The defendant took an appeal to the the Constitution of the state of Oklahoma, Supreme Court of the state of Oklahoma, and, then transferred to the Supreme Court of upon the creation of the Criminal Court of the state of Oklahoma. When this court was Appeals, as directed by statute, the Supreme created, as directed by statute, the case was Court transferred the case to the Criminal transferred by the Supreme Court to the Court of Appeals. No brief has been filed, Criminal Court of Appeals. The presiding and we are not advised what the defendant Judge of this court, Hon. HENRY M. FUR-complains of, or relies upon, for a reversal. MAN, having been of counsel in the case, and On February 3, 1909, the defendant filed a being thereby disqualified as one of the judg-dismissal of appeal, which, omitting the formes of this court to hear and determine the al part, reads as follows: "Comes now Elsame, this fact having been duly certified mer Hiteshew by his attorney, C. D. Watto Gov. Haskell, he thereupon appointed Hon. A. C. CRUCE as special judge of the Criminal Court of Appeals for the trial and determination of said cause. Mr. CRUCE having duly qualified as special judge, the case was submitted upon the petition for rehearing. kins, and voluntarily dismissed the above appeal. Wherefore plaintiff in error moves the court that an order of said court be entered dismissing the appeal, at the request and motion of said plaintiff in error, and that said dismissal was made voluntarily, on his behalf. C. D. Watkins, Attorney for Plaintiff Williams & Utterback, J. G. Ralls, and in Error." In cases of this kind, where a mo Henry M. Furman, for appellant. Chas. tion to dismiss the appeal has been filed, we do not consider it the duty of this court to go into an examination of the record as presented to determine whether or not the trial court erred in the trial of the case. PER CURIAM. In the trial of this cause The motion to dismiss the appeal is thereharmful error was committed, both in the fore allowed, and the appeal is dismissed. charge of the court and in the improper The clerk of this court will issue a mandate exclusion of testimony. We will, however, to the district court of Canadian county, diat this time withhold discussion of the vari-recting the sheriff to enforce the judgment of ous assignments of error, in order that coun- the district court. |