ascertained by the court, and directed to be paid by an order thereof, and not otherwise. Upon the presentation of the certified copy of such order to the proper officer of the county wherein such court is holden, it shall be the duty of such officer to draw his warrant on the treasurer of such county for the amount therein specified. [L. 1862; D. Cd. § 866; L. 1891, p. 131; H. C. § 892.]

CHAPTER III.

OF OFFICIAL REPORTERS IN THE CIRCUIT COURTS.

§ 903. Judges to Appoint Official Reporters for Terms of Four Years.

The judge of each judicial district may, in his discretion, appoint a stenographer, to be attached to the courts holden by them, who shall be skilled in the practice of his art, and shall be an officer of the court, and be designated and known as the "Official reporter of the judicial district

of the State of Oregon," who shall hold office for four years, and until his successor is appointed and qualified; and before entering upon the discharge of his official duties he shall take and subscribe an oath to perform faithfully the duties of the office. [L. 1889, p. 142, § 1.]

904. Duties of Official Reporters.

It shall be the duty of the official reporter, appointed under the provisions of this act, to attend every term of the circuit court in the district for which he is appointed, at such times as the judge presiding may direct; and upon the trial of any cause in any such court, if either party to the suit or action, or his attorney, requests the services of the official reporter, the presiding judge may grant such request, or upon his own motion, order a full report of the testimony, exceptions taken, charge of the judge, and other proceedings; in which case the official reporter shall cause accurate shorthand notes of the oral testimony, exceptions taken, charge of the judge, and other proceedings to be taken, which notes shall be filed in the office of the clerk of the court where such trial is had: Provided, that before such order is made, upon the application to the court by either party, the plaintiff or defendant requesting the services of such official reporter is required as a condition precedent to pay or secure to be paid the per diem fees as hereinafter provided for. [L. 1889, p. 143, § 2; L. 1899, p. 230, § 1.]

905. Reporter's Compensation.

Each official reporter so appointed shall be paid a compensation at the rate of ten dollars per diem for every day actually in attendance upon said court pursuant to the direction of the court, which compensation per diem shall be paid out of any funds not otherwise appropriated in the treasury of the county in which the court is held; and the sworn statement of the official reporter as to the number of days of attendance upon the court,

when certified as correct by the judge presiding, shall be a sufficient voucher to the county clerk, upon which he shall draw his warrant upon the treasurer of the county in favor of the official reporter, and when so paid such fees shall be taxed and collected as other costs in the case. [L. 1889, p. 143, § 3.]

§ 906. Transcripts of Testimony and Other Proceedings- Fees Therefor.

When shorthand notes have been taken in any case as in this act provided, if the court or either party to the suit or action or his attorney requests a transcript of the notes into longhand, the official reporter shall cause full and accurate typewritten transcripts to be made of the testimony or other proceedings, which shall, when certified to as hereinafter provided, be filed with the clerk of the court where such cause was tried for the use of court or parties. The fees of the official reporter for making such transcripts shall be fifteen cents per folio of one hundred words, and shall be paid forthwith by the parties or party for whose benefit the same is ordered, and when paid shall be taxed as other costs in the case: Provided, that when the defendant in any criminal cause who shall have perfected an appeal from judgment against him presents to the judge satisfactory proof, by affidavit or otherwise, that he is unable to pay for such transcript, the court, if in the opinion of the judge justice will be thereby promoted, may order said transcript to be made; and in all cases where transcript shall be ordered by the court, where not asked by the parties, the same shall be paid for out of the county treasury in the same manner as herein provided for the payment of compensation for per diem. [L. 1889, p. 143, § 4.]

§ 907. Certified Transcript, prima facie Correct Statement of Testimony and Proceedings.

The report of the official reporter, when transcribed and certified to as being a correct transcript of the stenographic notes of the testimony, exceptions taken, charge of the judge, and other proceedings in the matter, suit, or action, shall be prima facie a correct statement of such testimony, exceptions, charge of the judge, and other proceedings, and may thereafter be read in evidence as the deposition of a witness in the cases mentioned in section 841 of the code of civil procedure, and in case of the death, resignation, expiration of the term of office, or vacancy in the office from any other cause of the judge before whom such matter, suit, or action was tried, the exceptions and the statement thereof provided for by sections 169, 170, 171, and 172 of said code of civil procedure may be settled and signed by the successor in office of such judge or by any judge authorized in such cases to perform the general duties of the judge of such court: Provided, that when the official reporter taking the notes in any cause has ceased to be the official reporter of that court, any transcript by him made therefrom, or made by a competent person under direction of the court, and duly certified to by him, under oath as a full, true, and complete transcript of said notes shall have the same force and effect as though certified in the same manner

by the official reporter of said court. [L. 1889, p. 144, §5; L. 1899. p. 230, § 2.]

The certificate of the reporter only to his transcript is required as to the correctness thereof upon appeal, when the trial is had before the court, and only in cases where

the trial is had before a referee is the certificate of the judge required: Tallmadge v. Hooper, 37 Or. 508, 61 Pac. 349.

$ 908. Stenographers Appointed to Act Pro Tem.

That in the event of the absence or inability of the official reporter to act, the judge may appoint a competent stenographer to act pro tem., who shall perform the same duties as the official reporter, and whose report, when certified to, shall have the same legal effect as the certified report of the official reporter. The reporter pro tem. shall possess the qualifications and take the oath prescribed for the official reporter, and shall receive the same compensation. [L. 1889, p. 144, § 6.]

CHAPTER IV.

OF THE COUNTY COURTS.

§ 909. County Court, Organization and Jurisdiction Of.

The

The county court is created by the organic law of the state, article VII, constitution, and its organization is provided for, and its jurisdiction limited and defined by such organic law, and the provisions of this chapter. court is held by the county judge, except when county business is being transacted therein, and then it is held by such judge and two commissioners designated by law, or a majority of such persons. [L. 1862; D. Cd. § 867; H. C. § 893.]

§ 910. Actions at Law, Jurisdiction Of.

The county court has jurisdiction, but not exclusive, of actions at law and all proceedings therein, and connected therewith, where the claim or subject of the controversy does not exceed the value of five hundred dollars, and exclusive jurisdiction of actions for forcible entry and detainer, without reference to the value of the property. [L. 1862; D. Cd. § 868; H. C. § 894.]

See note to Art. VII, § 12 of the Oregon Constitution.

County courts are courts of superior and general jurisdiction as to matters over which the statutes under this section have vested in them original and exclusive jurisdiction; and as to such matters, the records of the county court are entitled to all the legal presumptions that belong to those of other courts of general and superior jurisdiction: Russell v. Lewis, 3 Or. 380; Tustin v. Gaunt, 4 Or. 305; Monastes v. Catlin, 6 Or. 119; Holmes v. Oregon & Cal. R. Co. 5 Fed. 523; Gager v. Henry, 6 Saw. 237.

In the exercise of its jurisdiction over the subject of laying out and opening roads, and the conduct of county business generally, it is a court of special and limited jurisdiction: Thompson v. Multnomah County, 2 Or. 37; Johns v. Marion County, 4 Or. 36; State v. Officer, 4 Or. 180.

The county court has no jurisdiction to try questions of title or rights arising out of the exercise of eminent domain: Canyonville & G. Road Co. v. Douglas County, 5 Or. 280.

Quaere: As to the effect of the law conferring jurisdiction upon justice's courts of actions of forcible entry and detainer, upon this section: Thompson v. Wolf, 6 Or. 311.

Where a complaint alleges that the value of the property in controversy is less than $500, and the answer alleges that it is over $500, the jurisdiction of the court is not ousted by the allegations of the answer, but the plaintiff is entitled to have the case tried; and if the defendant should sustain his answer by proof upon the trial, the only effect of such trial would be that the plaintiff could obtain no relief, and the action would be dismissed: Corbell v. Childers, 17 Or. 528, 21 Pac. 670.

§ 911. Exclusive Jurisdiction in Probate Matters.

The county court has the exclusive jurisdiction, in the first instance, pertaining to a court of probate; that is,—

1. To take proof of wills;

2. To grant and revoke letters testamentary of administration and of guardianship;

3. To direct and control the conduct and settle the accounts of executors, administrators, and guardians;

4. To direct the payment of debts and legacies, and the distribution of the estates of intestates;

5. To order the sale and disposal of the real and personal property of deceased persons;

6. To order the renting, sale, or other disposal of the real and personal property of minors;

7. To take the care and custody of the person and estate of a lunatic or habitual drunkard, and to appoint and remove guardians therefor; to direct and control the conduct of such guardians, and to settle their accounts; 8. To direct the admeasurement of dower. [L. 1862; D. Cd. § 869; H. C. § 895.]

As to the mode of proceeding in probate matters, see § 1119, et seq. As to jurisdiction of county courts, see Art. VII, and note, of the Oregon Constitution.

JURISDICTION PERTAINING TO PROBATE COURTS.-The county court is to be regarded in probate proceedings as having superior jurisdiction: Russell v. Lewis, 3 Or. 380.

The powers of the probate court are not created by statute; they are enlarged, limited, or varied: Ramp v. McDaniel, 12 Or. 108, 6 Pac. 456.

The constitution provides that the county court shall have "the jurisdiction pertaining to probate courts." In determining what is such jurisdiction, it is necessary to consider what jurisdiction probate courts had at the time the constitution was framed. The common law furnishes no definition of this jurisdiction, and its nature and extent, as understood in the United States, are to be ascertained in each state separately, and, to some extent, historically. Probate jurisdiction as understood at that time, included the power to decree specific performance by the administrator of contracts made by the deceased person for the conveyance of land. A statute, therefore, providing for the exercise of such power by the court is not unconstitutional: Adams v. Lewis, 5 Saw. 229.

The appointment of guardians for infants and insane persons is the exercise of jurisdiction pertaining to probate courts: Monastes v. Catlin. 6 Or. 119.

Since the county court has jurisdiction over the distribution of personal property of deceased persons, if there be an antenuptial contract which affects such property, it should be proved before such court, and the rights of the parties thereunder determined by such court: Winkle v. Winkle. 8 Or. 193.

County courts have no authority to determine what persons are entitled to realty, and to make a partition of the real property of decedent: Hanner v. Silver, 2 Or. 336.

A county court may entertain proceedings in the nature of a discovery against

the person charged with secreting or refusing to account for property belonging to the estate. Its power, however, ends with the discovery, so that the right or title of the decedent to the property claimed by or from his administrator must, if an adjudication becomes necessary, be litigated in courts of ordinary jurisdiction: Gardner v. Gillihan, 20 Or. 598, 27 Pac. 220.

A county court exercising probate jurisdiction has no power to determine an issue between the administrator and a claimant to property inventoried by the administrator as an asset of his estate: Re Bolander's Estate, 38 Or. 490, 63 Pac. 689.

In a proceeding to settle the accounts of an administrator, the probate court has jurisdiction to determine the right of the administrator, as such, to offset against the claim of a distributee the amount of costs which accrued in favor of the estate in suits brought by such distributee, as such a claim would be a debt due the estate; but it has no jurisdiction to pass on the right of the administrator to set-off a personal debt to him against the claim of a distributee: Dray v. Bloch, 29 Or. 347, 45 Pac. 772.

Where a ward, upon attaining her majority, and after her marriage, executed a release to her guardian, the county court had no jurisdiction thereafter of a suit to compel the guardian to account, but the ward must resort to equity to have the settlement set aside, since the county court is not a court of general equitable jurisdiction: Richardson's Guardianship, 39 Or. 246, 64 Pac. 390.

The county court is not authorized to order the mortgaging of a minor's real estate: Trutch v. Bunnell, 11 Or. 58, 4 Pac. 588, 50 Am. Rep. 456. On the first appeal of this case in 5 Or. 504, it was decided that the court had authority to authorize the mortgaging of a minor's estate.

Where a suit was begun by petition in a county court to test the validity of a will, and to revoke letters testamentary, and the petition was demurred to on the ground that the court had no jurisdiction; held, that the demurrer was properly overruled: Heirs of Clark v. Ellis, 9 Or. 128.

The proceedings and judgments of county courts in probate matters import absolute verity, and whenever they come in question collaterally, can not be impeached by evidence aliunde the record; but may be impeached by evidence appearing upon the face of the record, showing want of jurisdiction in the court: Tustin v. Gaunt, 4 Or. 305; Jones v. Dove, 6 Or. 191; Holmes v. Oregon & Cal. R. Co. 5 Fed. 523; Hubbard v. Hubbard, 7 Or. 42.

When an order of the county court for the sale of real and personal property of a deceased appears to have been regularly made, reciting all the jurisdictional facts necessary to authorize the order, no presumption will be indulged against the recitals, and extrinsic evidence of their truth is not necessary, but the burden of showing that the court has not acquired jurisdiction is on the party who disputes the truth of the recital: Russell v. Lewis, 3 Or. 380. No action can be maintained on an administrator's bond until a final settlement of his accounts in a county court. His removal for misconduct before the estate has been fully administered, does not obviate the necessity of such settlement, as the circuit court is without power to make such settlement: Adams v. Petrain, 11 Or. 304, 3 Pac. 163.

A county court has jurisdiction of a suit by an administrator de bonis non to compel the representative and surety of the first administrator, who had died, to settle the accounts of their principal: Herren's Estate, 40 Or. 66 Pac. 688.

The court has power to inquire into a case of devastavit, and to charge the delinquent with the amount thereof: Steel v. Holladay, 20 Or. 70, 25 Pac. 69.

The county court may, when it has reason to believe that an estate has been or will be mismanaged, require an executor to give a bond on a proper application by a legatee or creditor, notwithstanding an express declaration in the will that no bond or security shall be required of the executor: Bellinger v. Thompson, 26 Or. 320, 37 Pac. 714.

Before a will can be admitted as evidence it must be admitted to probate by the county court: Jones v. Dove, 6 Or. 188; and a deed can not be admitted in evidence to establish title under a will until such will has been admitted to probate in the county court: Willamette Falls, etc. Co. v. Gordon, 6 Or. 175.

The court has power by necessary implication to construe wills so far as they dispose of personalty, and, probably, also, as to real property; but a probate court ought not to entertain proceedings instituted merely for the purpose of having a judicial construction of a will; the interpretation of such an instrument should be only a step in the attainment of some other object: In re John's Will, 30 Or. 494, 47 Pac. 341, 36 L. R. A. 242.

An adjudication of the county court settling the final account of an administrator and directing the distribution of the estate, is a decree and not a judgment, and on an appeal the evidence must accompany the transcript, and the case be tried anew: Re Plunkett's Estate, 33 Or. 417, 54 Pac. 152. A decree of final settlement of an executor's account is conclusive, not only upon the executor, but upon the sureties, in the absence of fraud: Bellinger v. Thompson, 26 Or. 320, 37 Pac. 714; Thompson v. Dekum, 32 Or. 506, 52 Pac. 517, 755.

§ 912. County Business, Authority and Power to Transact.

The county court has the authority and powers pertaining to county commissioners to transact county business; that is,

1. To provide for the erection and repairing of courthouses, jails, and other necessary public buildings for the use of the county;

2. To provide offices and furniture, books, stationery, fuel, and light therefor, for the sheriff, county clerk, and treasurer, or other county officers;

3. To establish, vacate, or alter county roads or highways within the county, or any other necessary act relating thereto, in the manner provided by law;

4. To provide for the erection and repairing, within the county, of public bridges upon any road or highway established by public authority; 5. To license ferries and fix the rates of ferriage;

6. To grant grocery and all other licenses authorized by law, where the authority to do so is not expressly given to some other tribunal;

7. To estimate and determine the amount of revenue to be raised for county purposes, and to levy the rate necessary therefor, together with the rate required by law for any other purpose, and cause the same to be placed in the hands of the proper officer for collection;

8. To provide for the maintenance and employment of the county or transient paupers, in the manner provided by law;

9. To have the general care and management of the county property, funds, and business, where the law does not otherwise expressly provide;

10. To compound for or release in whole or in part any debt or damages