Johnson v. Tucker

• Decision Date: 03 October 1917
• Citation: 167 P. 787,85 Or. 646
• Parties: JOHNSON ET AL. v. TUCKER, CIRCUIT COURT JUDGE, ET AL.
• Court: Oregon Supreme Court

167 P. 787

85 Or. 646

JOHNSON ET AL. v. TUCKER, CIRCUIT COURT JUDGE, ET AL.

Supreme Court of Oregon

October 3, 1917

In Banc. Mandamus by Martin Johnson and others against Robert Tucker, as Judge of the Circuit Court for the Fourth Judicial District, Department No. 3, and others. Demurrer to the writ sustained.

The plaintiffs here instituted a previous suit in the circuit court of Multnomah county against Josephine Paulson to foreclose mechanics' liens which they claimed for labor and material furnished and which were used in the construction of a dwelling house for her. From a decree in that suit in favor of the plaintiffs the defendants appealed but the decision of the circuit court was affirmed after slight modifications, and a mandate of this court was issued and directed to that court substantially requiring it to enter a decree in accordance with the opinion rendered, order a sale of the property, and in case such sale should fail to pay all the amounts mentioned in the decree, together with interest, cost of sale, and the costs and disbursements of the court below, it should enter judgment against the defendants in that case and their surety for such deficiency. In this original proceeding here for a writ of mandamus that document discloses the history of the proceedings up to the point indicated, and further states in substance that the circuit court entered the mandate as required; that an execution was issued thereon and placed in the hands of the present defendant Hurlburt, who is sheriff of Multnomah county; that he offered the property for sale after due notice thereof and struck it off to the husband of Josephine Paulson, he being the highest bidder for the property, but that, he having refused to pay his bid, another execution was issued on the decree. At this juncture Josephine Paulson commenced a suit in equity against the sheriff to enjoin him from attempting to sell the property on the ground that at the time of the issuance of the execution and his attempt to sell, she was residing on the property in the house in question and by due notice to the sheriff claimed it as her homestead and that of her family. That suit was heard in the circuit court before the defendant Tucker as one of the judges thereof, and a decree was entered therein according to the prayer of the bill restraining the sheriff from selling the property on the grounds that it was a homestead as alleged. The alternative writ of mandamus issued out of this court recites the history of the affair substantially as indicated, but more in detail, requires the two defendants who are circuit judges to revoke the decree of injunction and allow the sheriff to proceed with the sale and commands the latter officer to sell the realty as directed by his writ. All the defendants were given the option of adducing any valid reason why they have not obeyed the present writ of mandamus. Called upon to show cause why it should not be made peremptory, the defendants have demurred generally.

Arthur H. Lewis and H. D. Angell, both of Portland (Hall & Lepper Asher & Johnstone, Lewis & Lewis, and Angell & Fisher, all of Portland, on the brief), for plaintiffs. L. P. Hewitt, of Portland, for defendants.

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

"The homestead of any family shall be exempt from judicial sale for the satisfaction of any judgment hereafter obtained. Such homestead must be the actual abode of, and owned by such family, or some member thereof." L. O. L. § 221. "When any officer shall levy upon such homestead the owner thereof, wife, husband, agent or attorney of such owner, may notify such officer that he claims such premises as his homestead. * * *" L. O. L. § 224.

Although a mechanic's lien takes its origin with the furnishing of labor or materials, it is not perfected until the notice or claim of lien is filed, whereupon it relates back to the beginning when the work commenced or the materials were furnished. It is still necessary to foreclose such a lien by suit in which a decree is rendered as in other suits for such purposes. The decree thus rendered is not different from others in its effect upon the...