Overturff v. Carroll

• Decision Date: 13 November 1923
• Citation: 109 Or. 326,219 P. 1081
• Parties: OVERTURFF v. CARROLL ET AL. (DOERNBECHER MFG. CO., GARNISHEE.
• Court: Oregon Supreme Court

219 P. 1081

109 Or. 326

OVERTURFF v. CARROLL ET AL. (DOERNBECHER MFG. CO., GARNISHEE.

Supreme Court of Oregon

November 13, 1923

Department 1.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by C. Overturff against J. Howard Carroll and others, doing business under the assumed name of the Forest Products Sales Company, with the Doernbecher Manufacturing Company as garnishee. Judgment for plaintiff, and garnishee appeals. Affirmed.

This is an appeal by a garnishee from a judgment rendered under the authority of section 320, Or. L. On March 28, 1921, C Overturff, the plaintiff and respondent, obtained in the circuit court for Clatsop county a judgment against the defendants J. Howard Carroll, Charles A. Fertig, and W. T Moore, doing business under the assumed name of Forest Products Sales Company, for the sum of $467, with costs and disbursements amounting to $7.20. On the following day the plaintiff caused a writ of execution to be placed in the hands of the sheriff of Multnomah county, and that officer levied upon moneys in the hands of the Doernbecher Manufacturing Company, a corporation and a creditor of the defendants. On April 2, 1921, the corporation delivered to the sheriff a certificate stating in substance, that the corporation had in its possession and under its control $303.93 against which it had a valid counterclaim of $164.08 leaving a balance of $139.85, over and above all offsets, due the defendants.

The certificate furnished by the corporation was not satisfactory to Overturff; and so in conformity with section 303, Or. L he procured an order of the circuit court requiring the garnishee to appear and be examined on oath. The plaintiff filed and served on the corporation written allegations and interrogatories. The garnishee filed a written answer to the allegations and a separate writing specifically answering the several interrogatories. The plaintiff replied to the answer which the garnishee filed to the allegations. A trial by jury was waived. Based upon the admissions in the pleadings and upon the evidence received at the trial, the court made its findings and conclusions, and entered a judgment against the garnishee for $164.08.

O. A Neal, of Portland, for appellant.

Garnet L. Green, of Astoria (Green & Wold, of Astoria, on the brief), for respondent.

HARRIS, J. (after stating the facts as above).

The garnishee contends that in two important particulars the allegations and interrogatories are not sufficient, when regarded as the plaintiff's complaint, to support the judgment.

The plaintiff avers in the allegations that--

"On the 28th day of March, 1921, the plaintiff herein secured a valid judgment duly and originally entered in the above-entitled court and cause against the defendants, J. Howard Carroll, Charles A. Fertig and W. T. Moore, doing business under the assumed name of Forest Products Sales Company, for the sum of $467, together with the further sum of $7.20 costs, and that said judgment is still in force and effect."

The plaintiff avers in the allegations that the corporation was--

"in truth and in fact indebted to the said defendants in the sum of $303.93, and had that sum of money in their possession, and that there was and

is no legal offset or counterclaim to the said indebtedness."

The garnishee argues that the quoted averments are no more than conclusions of law, and that the judgment cannot stand, because it is not supported by pleadings stating sufficient facts to constitute a cause of action. The garnishee claims that the plaintiff's pleading is fatally defective, because it does not sufficiently allege: (1) A judgment against the defendants; and (2) an indebtedness owing from the garnishee to the defendants.

When a plaintiff creditor sues a defendant debtor, and attaches or levies upon a debt owing from a third person to the defendant, the third person usually occupies the status of a disinterested stakeholder ( Edwards v. Case, 78 Or. 220, 228, 152 P. 880), but, instead of occupying the status of a disinterested stakeholder, the third person may find himself in the position of a litigant, for when the plaintiff is not satisfied with the certificate made by the third person and procures the order provided for by sections 303, 314, Or. L., and files allegations and interrogatories in compliance with section 315, Or. L., he initiates an auxiliary proceeding, which is in effect an action at law against the third person, and is prosecuted by the plaintiff, who, when prosecuting such action, stands in the shoes and asserts the rights of the principal defendant ( Oregon R. & N. Co. v. Gates, 10 Or. 514; Baker v. Eglin, 11 Or. 333, 334, 8 P. 280; Burns v. Payne, 31 Or. 100, 103, 49 P. 884; Graf v. Wilson, 62 Or. 476, 481, 125 P. 1005, Ann. Cas. 1914C, 462; Scheuerman v. Mathison, 74 Or. 40, 48, 144 P. 1177). A plaintiff, after the issuance of a writ of attachment or a writ of execution, may, upon taking the proper steps, acquire the right, analogous to subrogation, to step into the shoes of the defendant and maintain an action against the garnishee for the debt owing from the garnishee to the defendant, who is at once the debtor of the plaintiff and the creditor of the garnishee. Keene v. Smith, 44 Or. 525, 526, 75 P. 1065; Fraley v. Hoban, 69 Or. 180, 186, 133 P. 1190, 137 P. 751. If the garnishee has a money demand against the defendant, he can of course protect himself by pleading and proving it. Prudential Trust Co. v. Merchants' National Bank, 66 Or. 224, 229, 133 P. 1191. The proceeding maintained by the plaintiff is in all essentials a separate action against the garnishee. Case v. Noyes, 16 Or. 329, 332, 19 P. 104; Smith v. Conrad, 23 Or. 206, 210, 31 P. 398. The proceeding is at law, and the pleadings are framed, and the issues of fact arising from the pleadings are tried as in ordinary law actions ( Caldwell Banking & T. Co. v. Porter, 52 Or. 318, 323, 95 P. 1, 97 P. 541), and consequently, unless the indebtedness owing to the defendant is admitted the plaintiff must make out the case against the garnishee ( Case v. Noyes, 16 Or. 329, 332, 19 P. 104), for the burden of proof is on the plaintiff ( Prudential Trust Co. v. Merchants' National Bank, 66 Or. 224, 227, 133 P. 1191).

The proceeding is statutory. Graf v. Wilson, 62 Or. 476, 482, 125 P. 1005, Ann. Cas. 1914C, 462. The statute provides for written allegations and interrogatories. The allegations are absolutely necessary, and are designed to serve the same purpose which would be served by a complaint in an action begun by the defendant against the garnishee. Case v. Noyes, 16 Or. 329, 333, 19 P. 104; Smith v. Conrad, 23 Or. 206, 211, 31 P. 398; Fraley v. Hoban, 69 Or. 180, 186, 133 P. 1190. Although the allegations cannot be dispensed with ( McLaughlin v. Aumsville Mercantile Co., 74 Or. 80, 89, 144 P. 1154), it has been held that the proceeding may be maintained without interrogatories ( Mann v. W. A. Gordon Co., 77 Or. 457, 459, 151 P. 704). If, however, interrogatories are served, the sufficiency of the allegations may be determined by considering them in connection with the interrogatories. Castleman v. Stryker (Or.) 219 P. 1084 (decided November 7, 1923). Since the proceeding is an action in which the allegations and interrogatories take the place of a complaint, it must follow that the allegations considered in connection with the averments in the interrogatories must contain the essential elements of a good cause of action against the garnishee. Case v. Noyes, 16 Or. 329, 332, 19 P. 104; Smith v. Conrad, 23 Or. 211, 306, 31 P. 398.

Are the allegations, considered in connection with the interrogatories, fatally defective in either of the two particulars attempted to be pointed out by the garnishee? When pleading a judgment rendered by a court of superior jurisdiction, it is not necessary to plead every fact essential to confer jurisdiction; because every fact necessary to confer jurisdiction will be presumed, and it is unnecessary to allege a fact which the law will presume. Rutenic v. Hamaker, 40 Or. 444, 450, 67 P. 192; Willett v. Kinney, 54 Or. 594, 597,...