Ashley v. Pick

• Decision Date: 13 April 1909
• Citation: 100 P. 1103,53 Or. 410
• Parties: ASHLEY et al. v. PICK.
• Court: Oregon Supreme Court

100 P. 1103

53 Or. 410

ASHLEY et al. v. PICK.

Supreme Court of Oregon

April 13, 1909

Appeal from Circuit Court, Multnomah County; E.C. Bronaugh, Judge.

Action by M.A.M. Ashley and another, doing business under the firm name of Ashley & Rumelin; against C.O. Pick, doing business under the firm name of the C.O. Pick Transfer & Storage Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded for new trial.

John M. Gearin, for appellant.

W.S Hufford, for respondents.

MOORE C.J.

This is an action by M.A.M. Ashley and C.E. Rumelin, partners as Ashley & Rumelin, against C.O. Pick, who was doing business under the firm name of C.O. Pick Transfer & Storage Company to recover the value of certain counters, shelving, cases etc., which, it is alleged, the defendant converted to his own use. The complaint avers the legal capacity of the parties, and states that on April 22, 1907, A.J. Parrington and his wife, being the owners of such property, stored it with the defendant, who delivered to them a receipt therefor; that, on the day the memorandum was issued, Parrington and his wife assigned it to the plaintiffs, and also sold and transferred the store furniture to them; and that on July 27, 1907, the plaintiffs presented such receipt to the defendant, tendered the storage due, and demanded the possession of the property, but he refused to deliver any part thereof, and converted the same to his own use, damaging the plaintiffs in the sum of $850, for which judgment is demanded. The answer denies the material averments of the complaint, sets forth a copy of the receipt, which recites that it should be non-negotiable, and contains the following allegations:

"(5) That afterwards, to wit, on the 1st day of May, 1907, in a civil action for recovery of money then pending in the justice court for Portland district, Multnomah county, state of Oregon, wherein D.H. Smith was plaintiff and said A.J. Parrington and Olive Parrington, his wife, were defendants, a writ of attachment was duly issued, commanding the constable of said district of the personal property of said defendant to attach and safely keep to satisfy the demands of plaintiff in said action, together with the costs and expenses thereof. That under and pursuant to said writ all the personal property described in said complaint and so received by this defendant was duly attached and levied upon as the property of said defendants in said action. That afterwards, and on the 6th day of June, 1907, said court having jurisdiction over said defendant and the subject-matter of said action, rendered a judgment therein in favor of said plaintiff, and against said defendant, and all of said attached property was by the order of said court directed to be sold to satisfy said judgment. That, pursuant to such order and judgment of said court, the constable of said district did on or about the 22d day of June, 1907, take from the possession of this defendant all of said personal property, and pursuant to said judgment and order of sale, after having duly advertised the same, sold all said personal property to satisfy the judgment so rendered by said court in such action against said defendants A.J. Parrington and wife.

"(6) Further answering, defendant avers that he had no knowledge or any information of any sale, assignment, or transfer of the receipt so issued by him for the personal property so received from said A.J. Parrington and wife prior to the said 27th day of July, 1907, and long after the attachment levy upon and sale of said personal property; that said plaintiffs knew and were well aware that all of said personal property was so attached and levied upon as the property of said A.J. Parrington and wife, and was being advertised and sold as such; that the place of business of plaintiffs is in the same vicinity as that of defendant, and, during all the while said property so sold under attachment (was) being advertised and sold to satisfy the judgment against said Parrington and wife, the said plaintiffs, being fully advised thereof, acquiesced therein, and did not then or ever prior to such sale make any claim of ownership or any interest in said personal property, or cause any information to be given to this defendant that they had or claimed the same or any interest therein; that solely by reason of such acquiescence of plaintiffs in the proceedings then being had to subject the said property to the payment of said judgment, and the lack of any knowledge or information that plaintiffs claimed said property or any interest therein, this defendant took no appeal from the order and judgment of said court, directing the sale of said property, or any steps to enjoin the constable of said district from taking possession of said property under said writ, and this defendant alleges that, by reason of the acquiescence of plaintiffs on such levy and sale of said property, the plaintiffs are now estopped from making claim thereto."

A demurrer to the quoted parts of the answer, on the ground that the facts so stated did not constitute a defense, was sustained, and, a trial being had on the remaining issues, a judgment was rendered against the defendant for the sum of $200, and he appeals.

It is contended by defendant's counsel that the facts pleaded as an estoppel, if substantiated by evidence would have constituted a bar to the maintenance of the action, and, that this being so, an error was committed in sustaining the demurrer. It is maintained by plaintiff's counsel, however, that the answer does not show that the justice's court secured jurisdiction of the subject-matter of the action, in consequence of which no foundation was laid for an estoppel. The authority of a superior court to hear and determine causes is presumed, and hence it is unnecessary, in asserting a right based on a judgment of such court, to set forth the facts conferring jurisdiction. Rutenic v. Hamakar, 40 Or. 444, 67 P. 196. At common law no presumption in favor of the jurisdiction of an inferior court was indulged; and for that reason it was essential, in pleading a judgment of such tribunal, to allege the facts conferring power to hear and determine the cause. Dick v. Wilson, 10 Or. 490; Munroe v. Thomas, 35 Or. 174, 57 P. 419. This rule is changed by our statute, which contains the following enactment: "In pleading a judgment or other...