Fishburn v. Londershausen

• Decision Date: 17 December 1907
• Citation: 50 Or. 363,92 P. 1060
• Parties: FISHBURN v. LONDERSHAUSEN et al.
• Court: Oregon Supreme Court

92 P. 1060

50 Or. 363

FISHBURN v. LONDERSHAUSEN et al.

Supreme Court of Oregon

December 17, 1907

Appeal from Circuit Court, Yamhill County; Geo. H. Burnett, Judge.

Action by J.W. Fishburn, as trustee, against G.B. Londershausen and another From a judgment in favor of defendants, plaintiff appeals. Affirmed and remanded for further proceedings.

This is an action by J.W. Fishburn against G.B. Londershausen and S Londershausen on a negotiable promissory note for $200, with interest, executed to and made payable to the order of the State Savings Bank of Dayton, Or., on February 17, 1904, due six months after date. The complaint was filed September 14 1904, and, after setting out the note in full and alleging its execution, avers, in substance: That from February 9 to March 9, 1904, the State Savings Bank of Dayton, Or., was owned, managed, and controlled by one Arthur C. Probert; that on March 9th of that year Probert absconded, leaving no person in charge of the bank, and left the said note together with other property, locked up therein; that at the time of his disappearance he left many debts due to divers persons, including one J.C. Lewis, who had a claim against him for money deposited in his bank, for the recovery of which he brought an action against him in the circuit court for Yamhill county, and at the same time had a writ of attachment issued, in which the note here involved, with other property, was attached, by the sheriff seizing and taking the same into his custody, which said officer thereafter, prior to its maturity, sold on execution to satisfy the judgment obtained therein, at which sale this plaintiff became the purchaser thereof. The complaint purports to give all the proceedings leading up to and including the service of summons, which was by publication together with the entry of judgment, and sale of the attached note, as well as its delivery to plaintiff, among which appears the following allegation: "That on the ______ day of March, 1904, the said sheriff of Yamhill county, Or., returned said summons to the clerk of said circuit court of Yamhill county, Or., with his return indorsed thereon, duly certifying that he had made diligent search and inquiry for said defendant, Arthur C. Probert, and that said defendant, after due diligence, could not be found within the state of Oregon, and on the 30th day of March, 1904, it satisfactorily appearing to Hon. Geo. H. Burnett, judge of said circuit court of the state of Oregon for Yamhill county, by the affidavit of said J.G. Lewis, plaintiff in said action, that personal service of said summons could not be made upon said defendant, Arthur C. Probert, within the state of Oregon, and that a cause of action existed against said defendant and in favor of said plaintiff, that said defendant was not a resident of the state of Oregon, but then had property therein, which had been duly attached in said action, and that said court had jurisdiction over such property and of the subject of said action, said Geo. H. Burnett, as such judge, and on said day, duly made and granted an order, in said action, that service on said summons be made upon said defendant, Arthur C. Probert, by publication thereof in the Yamhill County Reporter, a newspaper published weekly at McMinnville, Yamhill county, Or., and having a general circulation, by publishing same once a week for six consecutive weeks." This is followed by averments showing a full compliance with the requirements of the order referred to in the foregoing paragraph, and, among other things, that at the time of the attachment and the taking of the note into custody by the sheriff, and sale thereof, it was the property of Arthur C. Probert, and in his bank, which bank he had apparently deserted; that plaintiff, J.W. Fishburn, as trustee, purchased the note at the execution sale resulting from the attachment proceedings for a valuable consideration, and at the time of the filing of this action was the owner and holder thereof; that this note was free from any liens; and that the same was due and unpaid. A demurrer to the complaint was filed on the ground that it did not state sufficient facts to constitute a cause of action. The demurrer was sustained, and, plaintiff declining to further plead, judgment was accordingly entered dismissing the complaint and for costs and disbursements, from which this appeal is taken.

R.L. Conner, for appellant.

Jas. McCain and W.T. Vinton, for respondents.

KING, C. (after stating the facts as above).

The points for determination are: (1) Is a negotiable promissory note, when found in the possession of its owner, and free from any liens, subject to attachment and sale under execution? (2) Does it appear from the complaint that, in the action between Lewis and Probert, there was sufficient compliance with the statutory requirements relative to service of summons to give the court jurisdiction to enter the judgment and order the sale of attached property?

In support of the first point, it is urged that the complaint is insufficient, in that it there appears that the note came into plaintiff's possession through attachment proceedings and the execution sale based thereon; that no provision is made by the statute for the attachment of negotiable promissory notes, and proceedings had in reference thereto are therefore void. The statute bearing on the question provides, in effect that all property in this state not exempt from execution, shall be subject to attachment; that the writ of attachment shall be directed to the sheriff of the county in which the property of the defendant may be situated, requiring him to attach and safely keep any property of the defendant, not exempt from execution, sufficient to satisfy plaintiff's demands; and that personal property capable of manual delivery, and not in the possession of a third person, shall be attached by the sheriff taking it into his possession, from which time until the writ is executed the plaintiff, as against third persons shall be deemed a purchaser in good faith. B. & C. Comp. §§ 299, 300, 301, 302. The complaint discloses that, at the time of the attachment, Arthur C. Probert was the sole owner and holder of the note involved, and that at the time of the levy it was not in the possession of any third person, but in the bank of which Probert was not only the sole owner, but the only one entitled to have charge thereof. The question as to the right to levy upon a negotiable promissory note and sell it under an execution issued for the sale of attached property has not heretofore been directly before this court; and all the authorities to which we have been referred, with but one exception, are from states where the Codes in force at the time the decisions were rendered expressly included promissory notes with other kinds of property subject to levy and sale. That the right of attachment is not a common-law remedy, but must depend upon the statute of the state where invoked, is too well settled to admit of serious doubt, nor do we understand it to be questioned here; the contention by plaintiff being that the word "property," as used in our Code, when indicating what may be levied upon, includes notes, while defendants insist that notes are neither expressly nor impliedly made the subject of attachment or sale. The effect, therefore, to be given to the provisions of the statute upon the subject, depends upon the construction to be placed upon the word "property"; that is to say: Does the Code, by the use of the words "property" and "personal property," include negotiable promissory notes? In this connection, it must be remembered that a special procedure is provided by section 301, subd. 3, supra, under which personal property, not capable of manual delivery and in the possession of third persons, may be reached, commonly known as garnishment proceedings; but this process is limited to property not in the possession of the defendant, from which it follows that this note, having been found in defendant's possession, if attachable at all, must be reached by the sheriff taking it into his custody, as provided in subdivision 2 of section 301 of the statute.

"Property" is defined as "the right and interest which a man has in lands and chattels to the exclusion of others" (2 Bouvier's Dict. p. 780); and "personal property" as being any right or interest which a man may have in things movable, and "includes money, chattels things in action, and evidence of debt" ( Id. p. 662; McLaughlin v. Alexander, 2 S.D. 226, 49 N.W. 99; Streever v. Birch, 62 Hun, 298, 17 N.Y.Supp. 195). The word "property" is the most comprehensive of all terms which can be used, as it "is indicative and descriptive of every possible interest which the party can have." 3 Stroud's Jud.Dict. (2d Ed.) p. 83; McLaughlin v. Alexander, supra. It means everything of exchangeable value. 6 Words and Phrases, p. 5694. In Willis v. Marks, 29 Or. 493, 45 P. 293, it is held that a claim against an estate, verified by the original claimant and assigned to a third party, is such evidence of indebtedness as to lend to it the character of property and subject it to an action in replevin. Much stronger, then, is the reason for holding a negotiable promissory note to be personal property, which is defined by our statute (B. & C. Comp. § 4586) as "an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand, or at a fixed or determinable future time, a sum certain in money to order or to bearer." The advantage therefore of such instrument over a mere verified and unapproved claim, not only in value and convenience, but as to its usefulness in commerce, is too apparent to admit of discussion, and, under the decisions cited, such...