Murphy v. Bjelik

• Decision Date: 13 February 1918
• Parties: MURPHY v. BJELIK ET AL.
• Court: Oregon Supreme Court

170 P. 723

87 Or. 329

MURPHY v. BJELIK ET AL.

Supreme Court of Oregon

February 13, 1918

Department 1.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

On petition for rehearing. Petition denied.

For former opinion, see 169 P. 520.

Wirt Minor and O. A. Neal, both of Portland (Teal Minor & Winfree and Wilson, Neal & Rossman, all of Portland on the brief), for appellant. J. W. Kaste and Maurice W Seitz, both of Portland, for respondents Bjelik and another. Hugh Montgomery, of Portland (Platt & Platt, of Portland, on the brief), for respondent Brayton & Lawbaugh, Limited.

HARRIS J.

The learning displayed by the attorneys for the appellant in their petition for a rehearing and the earnestness with which they have urged their contentions, the new arguments advanced, the amount involved in the controversy, and the importance of the questions litigated, all combine to demand further discussion of what was treated in the original opinion as the crucial question presented by the appeal. It is true that the record does not affirmatively show that the sheriff did not demand payment of the debt due from the Monarch Lumber Company of Oregon before levying upon its property; but it is also true that the record does not affirmatively show that the sheriff did demand payment of the debt. The return made by the sheriff on the writ of execution shows that he complied with every requirement of the statutes, except making a demand upon the Monarch Lumber Company of Oregon for payment of the amount of its debt to one of the judgment debtors, the Monarch Transportation Company. The entire judgment roll in the action prosecuted by Spencer, together with the writ of execution and the sheriff's return, the order confirming the sale, the sheriff's certificate of sale and the assignments of it, and the sheriff's deed, were all introduced in evidence by the plaintiff, and an examination of the record will disclose that not only the return made upon the writ of execution, but also the entire record, is silent upon the subject of whether a demand was made upon the Monarch Lumber Company of Oregon for payment of its debt before a levy was made by the sheriff upon its property, although all the details of the act of making the levy as well as of the sale of the property fully appear in the record. The respondents gave ample notice in their printed brief that they would insist that the sale was void because no demand had been made upon the Monarch Lumber Company of Oregon. It is not now, and never has been, contended that a demand was in fact made, although it is now argued by the petitioner that, since there is no evidence affirmatively showing a failure to make a demand, the presumption is that the sheriff performed his duty by demanding payment from the Monarch Lumber Company of Oregon. It was not intended to announce in the original opinion that the evidence affirmatively disclosed that a demand was not made, and any language which directly or indirectly suggests that the evidence affirmatively proves a failure to make a demand is inapt, because, as already stated, the record is merely silent upon the subject. However, the conclusion reached in the original opinion was predicated upon the theory that the making of a demand was mandatory, and not merely directory, that it was a jurisdictional prerequisite, and that, unless it affirmatively appeared upon the record that the sheriff had first demanded that the Monarch Lumber Company of Oregon pay its debt, a levy upon and sale of the company's property was utterly void.

The appellant insists that the court had authority to render a judgment against the Monarch Lumber Company of Oregon. We have again examined the question from every angle and carefully considered every argument advanced by the appellant, but we come to the same conclusion that was reached in the original opinion. Every section of the Code which can in any wise be applicable to any phase of the question is a component part of the Civil Code which was adopted in 1862 as framed by the Code commissioners. The Code was written as an harmonious whole, and it was not the work of persons writing at different times or at cross-purposes. Examining this Code as an harmonious whole, it will be seen that nowhere has it in terms conferred authority for rendering a judgment against a garnished third person when the attaching plaintiff is satisfied with the third person's certificate that he owes a matured debt to a defendant in the action. Not only does the Code fail to confer the authority in express terms, but every implication to be derived from the language found in it persistently points to a withholding rather than a granting of the authority. Express provision is made for a judgment against a garnishee who refuses to give a certificate or who gives an unsatisfactory certificate, and the very fact that such authority is expressly given in these two specified instances is by implication a withholding of authority to enter a judgment against a garnished person who satisfactorily certifies that he owes a matured debt to a defendant in the action. Provision is not only made for a judgment against a garnishee who refuses to make a certificate or who gives an unsatisfactory one, but express provision is also made for the issuance of an execution upon that judgment "as upon ordinary judgments between plaintiff and defendant." Section 321, L. O. L. There is no provision whatever for an execution against a garnished person who stands in the position of the Monarch Lumber Company of Oregon, and hence, to reach a matured debt owing from such garnished person, one must look elsewhere to see whether any provision has been made.

There are three kinds of executions, "one against the property of the judgment debtor," another against his person, and the third for the delivery of specific property or damages for withholding it. Section 214, L. O. L. The plaintiff in the action can have an execution issued by the clerk "against the property of the judgment debtor," and "it shall contain the name of the court, the names of the parties to the action, and the title thereof; it shall substantially describe the judgment." Section 215. The writ of execution is then delivered to the sheriff who executes it in the manner provided by sections 233 and 234; but it must be borne in mind that the writ with which the sheriff is armed is a writ of execution "against the property of the judgment debtor" in the action. If it appears from the certificate of the garnished third person that he is owing a matured debt to the judgment debtor in the action, then the sheriff, who is armed with this writ of execution "against the property of the judgment debtor," if such debt is not paid on demand, must levy on the property of the garnished third person, in all respects as if the execution was against the property of such third person. Section 234, L. O. L. The sheriff is not directed to look to a judgment against the third person to discover whether the latter owes a defendant in the action but the officer is required to look to the certificate. There is no provision for a writ of execution against the property of a garnished third person who has satisfactorily certified that he owes a matured debt to a defendant in the action, but the only provision made by the Code is a writ of...