Graf v. Wilson

• Decision Date: 06 August 1912
• Citation: 62 Or. 476,125 P. 1005
• Parties: GRAF v. WILSON et al.
• Court: Oregon Supreme Court

125 P. 1005

62 Or. 476

GRAF v. WILSON et al.

Supreme Court of Oregon

August 6, 1912

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by E.A. Graf against J.C. Wilson, in which Multnomah County was garnished. From a judgment against it as garnishee Multnomah County appeals. Affirmed.

This is an appeal by Multnomah county from a judgment against it as garnishee. In December, 1909, the plaintiff recovered a judgment against the defendant, J.C. Wilson, in the justice's court, for $175 and costs, and filed a transcript thereof in the circuit court for Multnomah county. Execution on the judgment was issued out of the circuit court June 25, 1911. On June 30, 1911, a writ of garnishment was served on Multnomah county, by delivering the same to the county clerk. The clerk made a return on the writ as follows "Nothing now in my hands as county clerk nor was there anything on June 30, 1911." Thereafter plaintiff filed an affidavit, and secured an order of the circuit court requiring the county clerk to appear and be examined under oath, concerning property in the possession of the said garnishee, belonging to defendant Wilson. Allegations and interrogatories were served upon the county by plaintiff, to which the garnishee answered. Issue was joined by the reply. Upon the examination, plaintiff and garnishee agreed upon the facts involved, as follows: "That during the month of June, the defendant, Wilson, worked for the county of Multnomah about 21.75 days at $5 per day, earning for said month the sum of $109.38; that upon the 30th day of June 1911, one of the road supervisors for said county issued to said defendant a time check for said amount; that on the 3d day of July, 1911, the defendant, Wilson, for a valuable consideration, assigned said time check to the firm of Aldrich & Linnett, which said firm thereafter and before the 11th of July, 1911, presented said time check to the county auditor of Multnomah county for audit and allowance; that at the time the writ of garnishment was served upon the county clerk, said claim had not been presented to the county auditor for audit and allowance." Upon these facts, the circuit court concluded that the plaintiff was entitled to a judgment against the county of Multnomah for $109.38.

M.H Clark and R.E. Dennison, both of Portland (Geo. J. Cameron Dist. Atty., of Portland, on the brief), for appellant.

Sidney Teiser, of Portland (Oliver M. Hickey, of Portland, on the brief), for respondent.

BEAN J. (after stating the facts as above).

It is contended on behalf of the county that the fund was not subject to garnishment, because Wilson's claim was contingent until presented for auditing and allowance. The contention of the plaintiff is that the claim is not contingent, and that the fact that the claim was not presented to the county at the time of, or before, the issuance of the writ, does not affect its character, nor make it contingent, and that therefore it was subject to garnishment.

This one question is involved in the case, namely: Was the debt due from the county subject to garnishment? The sections of the statute applicable thereto are as follows: Section 234, subdiv. 1, L.O.L., provides that: "If it appear from the certificate of the garnishee that he is owing a debt to the judgment debtor, which is then due, if such debt is not paid by such garnishee to the sheriff on demand, he shall levy on the property of the garnishee for the amount thereof, in all respects as if the execution was against the property of the garnishee; but if such debt is not then due, the sheriff shall sell the same according to the certificate, as other property." The original garnishment law relating to public officers was passed in 1862 (section 259, B. & C. Comp.), and provided that a public officer should not be liable to answer as garnishee. This section was repealed in 1903. See Laws of 1903, p. 199. In 1909, the Legislature of this state enacted section 258, L. O.L., which is as follows: "Any salary, wages, credits, or other personal property in the possession or under the control of the state of Oregon or of any county, city, incorporated town, school district or other political subdivision therein or thereof, or any board, institution, commission, or officer of the same, belonging or owed to any person, firm or corporation whatsoever, shall be subject to attachment, garnishment and execution in the same manner and with the same effect as property in the possession of individuals is now subject to attachment, garnishment and execution; provided, however, that process in such proceedings may be served on the officer by or through whom such salary, wages, credits, or other property is paid or delivered in the ordinary course of business, or on the officer whose duty it is to audit or to issue a warrant for such salary, wages, money, or other personal property; and provided further, that no clerk or officer of any court shall be required to answer as garnishee as to any moneys or property in his possession in the custody of the law."

It is claimed by counsel for the county that the claim of Wilson, the principal debtor in the execution, was contingent by reason of section 3049, L. O.L., which concerns Multnomah county, and prescribes that any demand, except the salary of the county auditor, to be paid out of the treasury shall be audited and approved by the county auditor, and an order made by the county court or board of commissioners, before the same shall be paid. "No order or warrant for the payment of any demand shall be valid, either in the hands of the original payee or holder, or any transferee or assignee thereof, unless the demand for which the same was...