Lovelady v. Burgess

• Decision Date: 14 February 1898
• Citation: 32 Or. 418,52 P. 25
• Parties: LOVELADY v. BURGESS.
• Court: Oregon Supreme Court

52 P. 25

32 Or. 418

LOVELADY v. BURGESS.

Supreme Court of Oregon

February 14, 1898

Appeal from circuit court, Douglas county; J.C. Fullerton, Judge.

Suit in equity by T.B. Lovelady against Ruby Burgess to determine an adverse claim to certain real property. From a decree in favor of plaintiff, defendant appeals. Affirmed.

W.R Willis, for appellant.

F Page-Tustin and G.G. Bingham, for respondent.

BEAN, J.

This suit was brought by plaintiff, who was in possession and claiming to be the owner of certain real property in Douglas county, to determine an adverse claim thereto; and, a decree having been rendered in his favor, defendant appeals. The facts, so far as material to any question necessary to be considered at this time, are that on November 9, 1885, the defendant herein duly recovered a judgment against the plaintiff in the circuit court of Josephine county for the sum of $500 and costs, and subsequently caused a certified transcript of the docket entry thereof to be filed in the office of the clerk of Douglas county, and duly docketed in the judgment docket of such county. Thereafter an execution was issued by the clerk of Douglas county on such transcript, and the real property in question levied upon and sold to the defendant. This sale was confirmed by the circuit court of Douglas county, and in due time a sheriff's deed was executed and delivered to the defendant, purporting to convey to her all the right, title, and interest the plaintiff had in and to the real property therein described at the date of the docketing of such judgment in Douglas county. She now claims title to the premises, and has notified the plaintiff to quit and surrender possession thereof to her. Hence this suit.

At the outset the defendant contends that the court was without jurisdiction, and should have sustained her demurrer to the complaint. But under section 504 of the statute (1 Hill's Ann. Laws) any person in possession of real property may institute a suit in equity against another claiming an estate or interest therein adverse to him for the purpose of determining such claim; and the plaintiff, having brought himself within the provisions of that section, is therefore entitled to maintain this suit. Zumwalt v Madden, 23 Or. 185, 31 P. 400; O'Hara v Parker, 27 Or. 156, 39 P. 1004.

The remaining question is whether the clerk of Douglas county could legally issue an execution on a judgment rendered in Josephine county, and, in our opinion, it must be answered in the negative. The rule is undoubted that, unless otherwise provided by statute, an execution can issue only from the court in which the judgment was rendered, and we have no statute modifying or destroying this rule. Section 269 authorizes a transcript of the original docket of a judgment to be filed in the office of the county clerk of any county of the state, and...