Finley v. Houser

• Decision Date: 21 June 1892
• Citation: 22 Or. 562,30 P. 494
• Parties: FINLEY v. HOUSER.
• Court: Oregon Supreme Court

30 P. 494

22 Or. 562

FINLEY v. HOUSER.

Supreme Court of Oregon

June 21, 1892

Appeal from circuit court, Umatilla county; MORTON D. CLIFFORD Judge.

Replevin by J.P. Finley, assignee for the benefit of creditors of W.M and Eva A. King, against Zo Houser. Judgment for defendant. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by STRAHAN, C.J.:

This is an action of replevin to recover the possession of a stock of goods, wares, and merchandise. After denying the material allegations of the complaint, the answer sets up a further defense as follows: "That at all the times and dates mentioned in the complaint, defendant was the duly elected qualified, and acting sheriff of Umatilla county, Or., and continued to be such sheriff until the 1st day of July, 1890 that on October 29, 1889, one C.A. Barrett, as administrator of John P. Miller, deceased, commenced an action in the above court, and at said time duly filed his complaint therein against W.M. and Eva A. King, for the recovery of the following described personal property, to wit." Then follows a description of the property, which is the same that is in controversy in this action. The answer then alleges, in substance, that the plaintiff in said action claimed the immediate delivery of said personal property, and on the same day made the affidavit in such case provided, for the claim and delivery of personal property, and delivered said affidavit to the defendant as sheriff, with an indorsement thereon, directing and requiring the defendant as such sheriff to take such personal property from the possession of the defendants in said action, and deliver the same to the plaintiff therein, and at the same time executed and delivered to the defendant a written undertaking, which was duly approved by the defendant as sheriff, and conditioned in all respects according to law in such case, and then and there delivered said undertaking to this defendant as sheriff, and that this defendant as such sheriff, by virtue of such process, and in obedience thereto, did on the 29th day of October, 1889, take the said property from the said W.M. and Eva A. King, and on or about the _____ day of November, 1889, delivered the same to Nelson A. Miller, who was then and there the duly appointed, qualified, and acting receiver of said court in the suit in equity entitled "C.A. Barrett, Administrator of John P. Miller, Deceased, vs. W.M. and Eva A. King," then pending in this court, which receiver was appointed by said court for the purpose of taking charge and possession of said personal property. And the said receiver did thereupon take possession of said personal property. That, at the time the defendant took possession of said personal property, the said C.A. Barrett, as administrator as aforesaid, was entitled to the immediate and exclusive possession thereof, and continued to be so entitled to the possession thereof until after the commencement of this action; and said W.M. King and Eva A. King, nor either of them, was at any time after October 29, 1889, nor any person claiming under them, entitled to the possession of said property, nor any part thereof. That such proceedings were duly had in said suit in equity of C.A. Barrett, as...