Opinion
Submitted on briefs February 29, 1928
Affirmed March 6, 1928 Rehearing denied March 27, 1928
From Columbia: JAMES A. EAKIN, Judge.
AFFIRMED. REHEARING DENIED.
For appellant there was a brief over the name of Mr. W.F. Magill.
For respondent there was a brief over the name of Mr. J.W. Day, City Attorney.
In Banc.
Appellant was convicted in the Recorder's Court of the City of St. Helens of the crime of selling moonshine whisky. It was adjudged that he pay a fine of $250 and serve a term of 100 days in the city jail. From this judgment he appealed to the Circuit Court for Columbia County. Concluding, perhaps, that an appeal did not lie and that he had mistaken his remedy he then had issued a writ to review the proceedings of the municipal court. After hearing, the Circuit Court dismissed the writ. Hence this appeal.
Appellant has no abstract of record. However, the one filed by respondent discloses that the appeal is still pending in the Circuit Court. No motion was ever made to dismiss the same. It is well settled in this jurisdiction that, while appeal and writ of review are concurrent remedies, they cannot be prosecuted at the same time: Clubine v. City of Merrill, 83 Or. 87 ( 163 P. 85); Cooper v. Bogue, 92 Or. 122 ( 179 P. 658, 180 P. 103).
It therefore follows that the decree of the Circuit Court dismissing the writ is affirmed.
AFFIRMED. REHEARING DENIED.