Ex parte Level

• Decision Date: 01 August 1916
• Parties: EX PARTE LEVEL.
• Court: Oregon Supreme Court

159 P. 558

81 Or. 298

EX PARTE LEVEL.

Supreme Court of Oregon

August 1, 1916

In Banc.

Habeas corpus on the petition of James M. Level. Petition granted and petitioner discharged from custody.

W. P Lord, of Portland, for petitioner. Walter H. Evans, Dist Atty., Arthur A. Murphy, Dep. Dist. Atty., James N. Davis and W. W. Dugan, Jr., all of Portland, for respondent Sheriff.

On Rule to Show Cause.

PER CURIAM.

In response to an order made by Mr. Justice Bean, requiring the sheriff of Multnomah county to show cause why a writ of habeas corpus should not issue for the purpose of inquiring into and determining the legality of the detention by said sheriff of the petitioner, James M. Level, the parties concerned have been heard by this court, and without discussion of the merits we are of the opinion that a prima facie case has been made by the petitioner sufficient to authorize the issuance of the writ. It will therefore be issued according to the prayer of the petition.

On the Merits.

On December 19, 1912, John M. Level began an action against the petitioner and his wife for the recovery of moneys, and thereafter the defendants therein filed their answer and, at the same time, a cross-bill in equity to which John M. Level filed an answer, wherein, after certain admissions and denials, he pleads affirmatively as follows:

"For the further and separate answer to the cross-bill the defendant alleges that the money as set out in the complaint and the cross-bill was delivered to the plaintiff herein James M. Level, and that thereafter the said James M Level and Lucy Level, his wife, and plaintiffs in said cross-bill, agreed in the state of Washington, where the James M. Level had his residence at that time, and under the laws of Washington said property delivered to him is community property, that if the defendant would let him use some of the money on hand, they would repay it all to him whereupon the plaintiff of the cross-bill James M. Level did expend for improvements on the property of Lucy Level, and for her benefit, a large portion of said money, all of which she agreed to repay to John M. Level, the exact amount of which the defendant does not know, but asks that the same be ascertained; that during the month of May, 1911, the plaintiffs James M. Level and Lucy Level agreed to convey to this defendant the N.W. 1/4 of N.W. 1/4, section 24, T. 5 N., R. 3 E., of W. M., situated in Clarke county, Wash., for the sum of $600, which money was out of the money which had been paid to James M. Level, and this defendant further alleges that he went into possession of said property and put improvements thereon under the understanding and belief that the plaintiffs herein had good title thereto, or would acquire the same, but defendant, on or about the 1st day of March, 1912, discovered that the title to said property remained in the name of the man who had lost his life in Portland by fire, by accident, and that the said James M. Level and Lucy Level had no title to said property, and do not have the title to said property at this time.

"The defendant further alleges that James M. Level used a portion of the money turned over to him by this defendant for improvements on a homestead in the vicinity of the land above described, and that all of the money received by this defendant from said James M. Level was the sum of $551.50, leaving a balance due to John M. Level of $2,219.60.

"Wherefore the defendant prays for an accounting with the said plaintiffs, and for proof that the said James M. Level and Lucy Level have a title to the property described herein, to wit: N.W. 1/4 of the N.W. 1/4, section 24, T. 5 N., R. 3 E., of W.

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