Liberman v. Low

• Decision Date: 16 October 1934
• Citation: 148 Or. 359,36 P.2d 791
• Parties: LIBERMAN et al. v. LOW, Sheriff.
• Court: Oregon Supreme Court

36 P.2d 791

148 Or. 359

LIBERMAN et al. v. LOW, Sheriff.

Supreme Court of Oregon

October 16, 1934

In Banc.

Appeal from Circuit Court, Klamath County; W. M. Duncan, Judge.

Action by Joe Liberman and Gus Rosencrantz, doing business as Liberman & Rosencrantz Co., against L. L. Low, Sheriff. From an order directing a general verdict for defendant and judgment entered thereon, plaintiffs appeal.

Reversed and remanded, with instructions.

Bert C. Thomas and A. C. Yaden, both of Klamath Falls, for appellants.

T. R Gillenwaters and J. C. O'Neill, both of Klamath Falls for respondent.

CAMPBELL Justice.

On March 2, 1931, Connolly Bros., an Oregon corporation, was engaged in the general mercantile business in Klamath Falls. On that date, it made a general assignment for the benefit of all its creditors to the Adjustment Bureau of the Portland Association of Credit Men. On March 9, 1931, said Adjustment Bureau transferred all the property of Connolly Bros covered by said assignment, to G. W. Brainard as trustee for said creditors. Some time in the latter part of March, said Brainard, in the liquidation of the business, sold and transferred to plaintiffs herein all of said property.

On March 14, 1931, the Klamath Hardware Company, an Oregon corporation, commenced an action against Connolly Bros. and others to recover the sum of $166.51, and thereupon sued out a writ of attachment against said defendants. The writ was executed by levying on certain merchandise covered by the assignment to said Brainard. The defendants therein made default, and judgment was duly entered in favor of plaintiff and against each of defendants and also against the Fidelity & Deposit Company of Maryland, but no order of sale of the attached property was entered. The judgment recites that defendants appeared and gave "bond for the release of the attached property," with the Fidelity & Deposit Company of Maryland as surety, conditioned that said surety "will pay to said plaintiff any judgment that may be rendered."

On March 16, 1931, the Pioneer Tobacco Company began an action against Connolly Bros. and others to recover judgment for the sum of $165.72 and sued out a writ of attachment. Said writ was executed by levying upon certain merchandise covered by the assignment to said Brainard. Defendants therein defaulted, and judgment was entered against them for the amount prayed for in the complaint, but no order of sale of the attached property was entered.

Thereafter and on April 14, 1931, the said judgment creditors had the clerk issue writs of execution on said judgments against the property of Connolly Bros. The sheriff executed said writs by levying on certain property in the possession of plaintiffs, which property had been transferred by said G. W. Brainard to plaintiffs by virtue of the authority of said assignment.

Thereafter plaintiffs brought the instant action to recover possession of said property and filed an affidavit for the immediate possession thereof. Defendant moved to quash plaintiff's affidavit for the immediate possession of the property. The court allowed the motion and ordered the sheriff to summon a sheriff's jury to determine the ownership of the property levied upon under the writs of execution. Plaintiffs had filed no claim with the sheriff as being the owners of such property. The sheriff's jury returned a verdict to the effect that Connolly Bros. was the owner of the property at the time of the levy. Thereupon defendant filed an answer denying the plaintiff's ownership of the property, and for a further and separate answer and defense justified his possession under the writ of execution, and also alleged the verdict of the sheriff's jury as a further justification.

To this answer plaintiffs filed a reply in which they denied the new matter set up in the answer and alleged the source of their title through purchase from said Brainard; that they had purchased said property and took possession thereof before any writ of execution had been issued, and alleged that they had at no time given the sheriff a notice in writing of their claim to said property; that any trial held by the sheriff's jury was on the motion of defendant and not otherwise.

The cause came on for trial before a jury, and, after the evidence was all submitted, both plaintiff and defendant moved for a directed verdict; plaintiff waiving all damages arising on account of the taking. Thereupon the court directed the jury to return a general verdict for defendant, and judgment was entered thereon. Plaintiffs appeal.

There were motions and demurrers filed to the complaint and to the answer, but we do not deem them of sufficient importance to make them a part of the record at this time, as the case will be disposed of on other grounds.

1. An attachment lien is waived by failure of the one having the writ issued to have an order of sale made at the time judgment is entered in the case in which the attachment is levied. Oregon Code 1930, § 4-414; Moore Mfg. Co. v. Billings, 46 Or. 401, 80 P. 422; Smith v. Dwight, 80 Or. 1, 148 P. 477, 156 P. 573, Ann. Cas. 1918D, 563; Mertens v. Northern State Bank, 68 Or. 273, 135 P. 885; Hill v. Wilson, 123 Or. 193, 261 P. 422.

Property may be discharged from attachment by the defendant giving a bond, Oregon Code 1930, § 4-416, conditioned that the sureties thereon will pay any judgment recovered by plaintiff. Id. § 4-417.

Defendant levied on said property by virtue of a writ of execution against the property of Connolly Bros., a corporation.

When personal property shall be seized on execution and any person other than defendant shall...