Jennings v. Frazier

• Decision Date: 22 May 1905
• Citation: 46 Or. 470,80 P. 1011
• Parties: JENNINGS v. FRAZIER et al.
• Court: Oregon Supreme Court

80 P. 1011

46 Or. 470

JENNINGS v. FRAZIER et al.

Supreme Court of Oregon

May 22, 1905

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Action by O.O. Jennings against J.S. Seed; Wm. Frazier, and another garnishees. From a judgment in favor of the garnishees plaintiff appeals. Affirmed.

Jerry E. Bronaugh, for appellant.

John H Hall, for respondents.

BEAN J.

This is a proceeding by garnishment against Frazier & McLean to subject certain property in their possession, formerly belonging to the defendant Seed, to the payment of a judgment recovered by the plaintiff against Seed. It is averred in the allegations that on June 11, 1904, plaintiff commenced an action against Seed to recover money, and that such proceedings were thereafter had in such action that on November 3, 1904, a judgment was duly rendered in his favor and against Seed for $5,000; that an execution was immediately issued thereon, and, together with a notice of garnishment, served upon Frazier & McLean, to which they made answer that they had no property in their possession or under their control, belonging to Seed, except two sets of harness but that they had on the 29th of October previously purchased of him one horse, three buggies, and one old wagon. It is then averred "that said pretended sale and purchase was not bona fide, but was and is wholly void, because the same was made by said J.S. Seed to said Frazier & McLean in trust for said Seed, and for the purpose of hindering, delaying, and defrauding this plaintiff in the collection of his said debt, and said sale and transfer has hindered, delayed, and defrauded this plaintiff in the collection of said debt, which facts were well known to said Frazier & McLean at the time of said pretended sale and purchase; that said Seed is insolvent, and it is necessary, in order to satisfy said judgment, that said sale be set aside ***"; that the value of the property alleged to have been purchased by Frazier & McLean was $600. The answer is a general denial of the averments of the allegation. A trial was had without a jury, and the court found: "First. That the sale of the horse and other personal property made by J.S. Seed to Frazier & McLean was a bona fide sale, without notice, and passed the title of said property to said Frazier & McLean. Second. That at the time of the service of the garnishment upon Frazier & McLean by the sheriff of Multnomah county, as alleged in plaintiff's allegations in this proceeding, the said Frazier & McLean had no property in their possession or under their control, belonging to the said J.S. Seed, except as returned by them in their answer to the said garnishment. Third. That the answer of the said Frazier & McLean to the said garnishment served upon them in this proceeding on the 3d day of November, 1904, was true." And as conclusions of law: "That William Frazier and Ellis McLean be dismissed hence without day, and that they have judgment for their costs and disbursements." On the same day the findings of fact and conclusions of law were filed a judgment was entered in accordance therewith in favor of Frazier & McLean for $11, their costs and disbursements, without the service of a cost bill. From this judgment the plaintiff appeals, claiming that the court failed and neglected to find on all the material issues in the case, in that it did not find specifically whether the sale by Seed to Frazier & McLean was made by him for the purpose of defrauding the plaintiff, or whether Frazier & McLean had knowledge of facts at the time of the purchase sufficient to put them on inquiry as to Seed's intention in making the sale, if it was in fact fraudulent, or whether the sale was made for a valuable consideration.

Where an action at law is tried by the court without the intervention of a jury, it is the duty of the court on its own motion to make findings of fact covering all the material issues made by the pleadings, and such findings must be sufficient to sustain the judgment. Daly v. Larsen, 29 Or. 535, 46 P. 143; ...