Mitchell v. Schoonover

• Decision Date: 16 April 1888
• Citation: 17 P. 867,16 Or. 211
• Parties: MITCHELL v. SCHOONOVER.
• Court: Oregon Supreme Court

17 P. 867

16 Or. 211

MITCHELL v. SCHOONOVER.

Supreme Court of Oregon

April 16, 1888

Syllabus by the Court.

Appeal from circuit court, Union county.

Baker Shelton & Baker and Geo. G. Bingham, for respondent.

J.R Crites, for appellant.

STRAHAN J.

On the 14th day of June, 1886, the plaintiff commenced this action against Thomas P. Baird and M.B. Baird to recover $1,800 and interest due on a promissory note, and on the same day sued out a writ of attachment against the property of the defendants. The summons as well as the attachment were served in Union county, Or., on the next day after they were issued. On the 27th day of June, 1886, the defendants appeared by their attorney in fact, Willis Skiff, and filed a demurrer to the complaint, which was on the 1st day of October, (it being the October term of said court,) 1886, overruled. On the 6th day of October, 1886, the plaintiff took judgment against the defendants for want of an answer. On the 26th day of November, 1886, Nelson Schoonover filed a petition, entitled in said action, reciting the above facts, and, further, that on the 6th day of October, 1886, M.B. Baird died at Union county, Or., and after his death plaintiff took judgment against said deceased, and an order for the sale of the attached property which belonged to said deceased; that the petitioner was on the 13th of October, 1886, duly appointed administrator of the estate of M.B. Baird, deceased, by the county court of Union county, Or. The prayer, in substance is for an order allowing petitioner to appear in said action as the duly-qualified administrator and legal representative of said deceased, and the further proceedings in said action be taken as against the petitioner as such legal representative. Thereafter on the 10th day of December, 1886 the plaintiff, by his attorneys, filed a motion to strike Schoonover's petition from the files; which motion was denied, on the 14th day of December, 1886. Afterwards the plaintiff filed a motion to strike paragraph 5 from Schoonover's petition, which recited that judgment was taken against said M.B. Baird after his death. On the 21st day of February, 1887, this motion was allowed by the court, and paragraph 5 was stricken out, and it was further ordered that said cause, as to said M.B. Baird, deceased, be, and the same is hereby, continued in the name of Nelson Schoonover, as administrator of said estate of M.B. Baird, deceased. On the 23d day of February, 1887, Nelson Schoonover filed a motion to vacate the judgment as to M.B. Baird, deceased, for the reason that the judgment against said M.B. Baird is void, having been rendered after his death. In support of this motion, numerous affidavits are filed. If said affidavits are competent or material, or can be considered, they tend to show that M.B. Baird died at Union, in Union county, Or., on the 6th day of October, 1886, at about the hour of 5 o'clock A.M. of said day, and that the judgment was not entered until after the hour of 9 o'clock A.M. of the same day. The plaintiff filed a motion to strike out these affidavits. The same was overruled, and Nelson Schoonover, as administrator, was allowed 10 days in which to file an amended motion and affidavits. Within the time allowed, an amended motion and some additional affidavits were filed. Afterwards, on the 23d day of July, 1887, both motions were denied by the court, from which last-named order overruling his motion to vacate the judgment as to M.B. Baird, deceased, Nelson Schoonover has appealed, and assigns for error the action of the court in overruling his said motion. Schoonover's amended petition to vacate said judgment shows that said M.B. Baird was insolvent at the time of his death, and that the attachment was levied wholly upon the real property of said M.B. Baird, and not upon any of the property of Thomas P. Baird; that fully $3,000 of M.B. Baird's debts were due to sureties of said M.B. Baird, who had made advances for him, etc. The application of Schoonover to vacate the judgment seems to be founded upon two theories: (1) That the death of M.B. Baird dissolved the attachment; and (2) that the judgment is void, because it is alleged that he died a few hours before the judgment was entered up. It may be doubted whether or not the order made in this case refusing to vacate this judgment is an appealable order. "A final order affecting a substantial right, and made in a proceeding after judgment or decree for the purpose of being reviewed, shall be deemed a judgment or decree." 1 Hill's Code, § 535. It is not perceived how this order affected a substantial right. No defense to the action was offered or proposed, nor did the appellant offer an answer of any kind. But this question was not suggested at the argument, and the decision will not be placed on this ground.

1. It is conceded that there is no provision of the Code which declares that an attachment will be dissolved by the death of either party. If such a result follows death, it must be gathered inferentially from some provision of the Code because it is nowhere expressed. But it will be most convenient to see, first, what effect the death of a party has upon a pending action. Section 38, Hill's Code, declares: "No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death, marriage, or other disability of a party, the court may, at any time within one year thereafter, allow the action to be continued by or against his personal representatives or successor in interest." And by section 144 it is provided that "the plaintiff may at the time of issuing the summons, or any time afterwards, have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered. *** From the date of the attachment until it be discharged or the writ executed, the plaintiff, as against third persons, shall be deemed a purchaser in good faith for a valuable consideration of the property, real and personal, attached. *** If effect be given to all of these provisions of the Code, the attachment is not dissolved by death. If a party die, the adverse party may, within one year thereafter, cause the action to be continued by or against the personal representatives of such deceased party; and the effect of a judgment in such action is to subject the property attached to its payment. There is some conflict among the authorities on the subject; but I think the decided weight of authority, as well as the better reason, is to the effect that an attachment is not dissolved by death unless some statute expressly so declares. In More v. Thayer, 10 Barb. 258, a complaint had been filed, and an attachment issued and served, but no summons had been served; but the court had acquired such jurisdiction of the action by the allowance of the provisional remedy of attachment that the defendant's administrator could be brought in, and the attached property subjected to the judgment. So, in Perkins v. Norvell, 6 Humph. 151, it was held that the death of the defendant did not dissolve the attachment, and that the attached property might be subjected to the payment of the debt by bringing in the heirs by means of a scire facias. In Thacher v. Bancroft, 15 Abb.Pr. 243, an attachment was issued, and on the same day the defendant died. Subsequently his executor appeared, and defended the action, and judgment was rendered in favor of the plaintiff. In passing on the question whether the attachment held the property or not, the court said: "The attachment remains in force notwithstanding the death of the defendant. The revival of the action by the appearance of the executor enables the plaintiff to obtain his judgment. Payment of such judgment out of the attached property can only be obtained through an execution by which the attached property is to be sold." So in Kennedy v. Raguet, 1 Bay, 484, an attachment was issued, and certain persons were garnished. The garnishees made default, and judgment went against them. About the time or immediately after the...