Kohn v. Hinshaw

• Decision Date: 28 January 1889
• Citation: 17 Or. 308,20 P. 629
• Parties: KOHN et al. v. HINSHAW, Sheriff.
• Court: Oregon Supreme Court

20 P. 629

17 Or. 308

KOHN et al. v. HINSHAW, Sheriff.

Supreme Court of Oregon

January 28, 1889

Appeal from circuit court, Baker county.

(Syllabus by the Court.)

A party's pleading is to be construed most strongly against himself for the purpose of determining its sufficiency.

Section 154, Hill's Code. The word "may," in this section, held to be equivalent to the work "must," and therefore, when a sufficient undertaking is tendered to the sheriff under this section by a claimant of the property attached, it is his duty to accept it, and to deliver the attached property to such claimant.

When the word "may" is used in a statute in conferring power upon a court, officer, or tribunal, and the public or a third person has an interest in the execution of the power the exercise of the power becomes imperative.

By the execution of the undertaking provided for by section 154 Hill's Code, the lien created by the attachment is not vacated or destroyed.

In an action against a sheriff for a neglect of an official duty the complaint must allege the particular neglect or omission upon which the plaintiff relies.

After receiving an execution in an action where property has been attached and delivered to a claimant upon executing the usual undertaking, the limit of the sheriff's duty is to make a demand for the property bonded, and, if the same is not delivered to him, to make a return of all of his proceedings to the court.

If the claimant fail to deliver the property attached according to the terms of his undertaking, the plaintiff may bring an action on such undertaking in his own name. He is the person for whose benefit such undertaking was executed, and is the real party in interest.

Hyde &amp Hyde, J.W. Whalley and C.A. Johns, for appellant.

Olmstead & Anderson, for respondent.

J.J. Shaw, of counsel, for claimants.

STRAHAN J.

This action is prosecuted by the plaintiffs to recover against the defendant, who is the sheriff of Baker county, Or., the sum of $563 damages and $55.06 costs and disbursements expended in another action, with costs of this action. From the amended complaint it appears that about the month of August, 1887, the plaintiff commenced an action in the circuit court of Baker county to recover of one Daniel Cochrane the sum of $563, with costs and disbursements, and caused a writ of attachment to be issued in said action, and placed the same in the hands of the defendant, as sheriff of Baker county, for service; that by virtue of said writ the defendant, as such sheriff, seized several barrels of whisky as the property of said Daniel Cochrane; that afterwards, on the 7th day of September, 1887, the plaintiff duly recovered a judgment in said action for the sum of $563, and $55.06 costs and disbursements, and on the same day caused an execution to be issued on said judgment, which execution was duly placed in the hands of the defendant sheriff of said Baker county for service; that at the time of the issuance of said attachment, and at the time of the commencement of said action, and the seizure of said property by virtue of said writ, and at the time of the issuance of said execution, and the delivery thereof, to the defendant, as sheriff, the said Daniel Cochrane was, and still is, the owner of said several barrels of whisky, which were of the value of $650; that said sheriff has not applied said whisky on said execution as directed by said execution; nor has he sold the same as commanded by said writ; and said Daniel Cochrane did not have, and has not, any other property subject to levy under said execution, by means whereof the plaintiffs have been deprived of all means of satisfaction of said execution; that plaintiffs are informed that said sheriff delivered said whisky to certain claimants thereof, upon the giving to said sheriff an undertaking for the redelivery thereof, or payment of the value thereof to said defendant as sheriff as aforesaid.

To this complaint the defendant demurred, which demurrer being sustained by the court, final judgment was entered against the plaintiffs for costs and disbursements, from which they have appealed to this court.

1. Upon the argument here a preliminary objection was taken by the appellants to the effect that it did not sufficiently appear from the complaint that the attached property had been delivered by the defendant to any person upon receiving the statutory undertaking therefor by the sheriff. His objection is that the allegation in the complaint that "plaintiffs are informed that said sheriff delivered said whisky," etc., is not equivalent to the direct allegation that he had so delivered it. It would seem somewhat paradoxical to allow a pleader to take advantage of an admitted defect in his own pleading for the sole purpose of escaping a more serious objection urged by his adversary; in other words, using its admitted weakness at one point for the purpose of giving it strength at another. But, however this may be, applying the ordinary rule that a party's pleading is to be construed more strongly against himself for the purpose of determining its sufficiency, the objection vanishes. Besides, this is an objection as to form only, not urged or taken in the court below, and it ought not to be controlling on this appeal. For the purpose of testing the sufficiency of this pleading the allegation in question must be held equivalent to a direct statement that the sheriff had received a proper statutory undertaking upon the execution of which he had delivered the property levied upon to the claimants.

2. But the real question which the parties present on this appeal is the construction of section 154 of Hill's Code, which is as...