Pursel v. Deal

• Decision Date: 14 May 1888
• Citation: 16 Or. 295,18 P. 461
• Parties: PURSEL v. DEAL et al.
• Court: Oregon Supreme Court

18 P. 461

16 Or. 295

PURSEL v. DEAL et al.

Supreme Court of Oregon

May 14, 1888

Syllabus by the Court.

Appeal from circuit court, Union county.

Suit by S.A. Pursel for an injunction against R.W. Deal and one Hamilton, sheriff. Plaintiff appeals from a decree of dismissal sustaining a demurrer to his complaint.

T.H Crawford and George G. Bingham, for appellant.

Baker Shelton & Baker, for respondents.

STRAHAN, J.

This is a suit to enjoin the enforcement of an execution issued out of the circuit court of Union county, Or., on a judgment therein in favor of the respondent R.W. Deal, and against one G.H. Benson. It appears from the amended complaint that on the 3d of May, 1876, R.W. Deal recovered a judgment against G.H. Benson, in said circuit court of Union county, for $480.14, which was placed on the lien docket of said court that on the 17th day of April, 1880, the plaintiff became the owner, by purchase and conveyance from Benson, of certain real property situate in said county of Union, and that plaintiff now owns same in fee; that, for more than five years after the entry of said judgment, no execution was issued thereon; that on the 27th of September, 1883, Deal made application to said court, by motion, for leave to issue execution on said judgment; "that, after the filing of said motion, Deal failed and neglected to cause a summons in said cause to be served upon said G.H. Benson, the judgment debtor therein, personally, and that in fact no personal service of said summons was ever had therein upon said judgment debtor, G.H. Benson, but, on the contrary, service of summons *** was had, or attempted to be had, by publication; that said motion, and the affidavit for the publication of the summons therein, failed to describe or assert that said original judgment of R.W. Deal v. G.H Benson was a lien upon any particular real estate or property in this state; that thereafter the said circuit court, on the 27th day of May, 1881, made an order on said motion granting the same, and specifying the amount for which execution might issue, and caused the same to be entered and docketed as a judgment;" that on the 3d of January, 1884, an execution was issued on said judgment, by virtue of which the sheriff of said county sold real property to Deal, and the execution was returned on the 26th of August, 1884, showing these facts. On the 27th of September, 1886, upon the motion of R.W. Deal, and without notice to said G.H. Benson, the court made, and caused to be entered upon the journal thereof, an order quashing, vacating, and holding for naught said return of said sheriff upon said execution. On the 30th of July 1887, R.W. Deal caused another execution to be issued on said judgment, and placed in the hands of the defendant Hamilton, who is sheriff of said county, who has wrongfully levied the same upon the land which plaintiff purchased from Benson, and has advertised the same for sale to satisfy said execution, interest, and costs. The amended complaint contains some other allegations not material to be stated. The defendants demurred, and assigned two grounds of demurrer: (1) That the complaint does not state facts sufficient to constitute a cause of suit; (2) that there is a misjoinder of parties defendant therein. The court sustained the demurrer, and rendered a final decree dismissing the suit, from which the plaintiff has appealed.

1. The material question to be considered is the first one presented by the demurrer. This presents the general proposition that the complaint does not state sufficient facts to constitute a cause of suit. The main point relied upon by the plaintiff is that under the Code, after five years had elapsed from the date of the judgment without an execution having been issued thereon, it became dormant, so that no execution could be issued without leave of court, and that the statute regulating the method of procuring such order had not been complied with. The particular irregularity relied upon by the present plaintiff is that personal service was not made on Benson, "but, on the contrary, service of the summons *** was had, or attempted to be had, by publication; that said motion, and the affidavit for the publication of the summons therein, failed to describe or assert that said original judgment of R.W. Deal v. G.H. Benson was a lien upon any particular real estate or property." This is the entire statement in the complaint of the supposed want of jurisdiction, and, as a complete answer to it, it might be sufficient to say that it wholly fails to negative the fact or show that Benson did not appear on the hearing of said motion by himself or attorney, or that said proceeding was had or taken against him without notice. Nor does it appear whether he was, at the time, a resident of the state or not. Nor does it appear what was...