State ex rel. Hammer v. Downing

• Court: Oregon Supreme Court
• Writing for the Court: [40 Or. 314] MOORE, J. (after stating the facts).
• Citation: State ex rel. Hammer v. Downing, 40 Or. 309, 66 P. 917 (Or. 1901)
• Decision Date: 16 December 1901
• Parties: STATE ex rel. HAMMER v. DOWNING.

66 P. 917

40 Or. 309

STATE ex rel. HAMMER v. DOWNING.

Supreme Court of Oregon

December 16, 1901

Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr. Judge.

Contempt proceedings by the state, on the relation of Thomas J Hammer, against F.O. Downing, for failure to comply with an order requiring the satisfaction of a judgment. From an order adjudging the defendant in contempt, he appeals. Affirmed.

This is a special proceeding to punish the defendant for a constructive contempt in disobeying an order of the circuit court for Multnomah county requiring him to apply certain money found by the court to be in his possession to the satisfaction of a judgment against him and another in favor of Hammer. It was instituted June 30, 1898, by filing an affidavit of which the following is a copy, to wit:

"Thomas J. Hammer, Plaintiff, v. F.O. Downing and F.H. Hopkins Partners Styled Downing & Hopkins, Defendants. State of Oregon, County of Multnomah--ss. I, Thomas J. Hammer, being first duly sworn, say that I am the plaintiff in this action; that on the 29th day of October, 1897, a judgment in the above-entitled action was entered in favor of plaintiff and against the defendants in the sum of $7,617.50, with interest from July 15, 1897, at 8 per cent per annum, and $141.30 costs and disbursements, and upon the same day the said judgment was docketed in the lien docket in the clerk's office in this court, and is now a valid and existing judgment; that on the 24th day of November, 1897, an execution upon said judgment was duly issued, but that the same was wholly unsatisfied, and is to-day wholly unsatisfied and unpaid; that by order of the above court duly issued December 4, 1897, and by a further order issued December 20, 1897, upon proceedings supplemental to execution, J.R. Stoddard, Esq., was duly appointed by this court referee to take testimony and report the same to this court, together with his findings of fact and conclusions of law; that upon December 29 1897, the report of the said referee, containing all testimony taken by him, together with his findings of fact and conclusions of law, were duly filed in this court; that said report found that on September 1, 1897, and at the time of making and filing said report, defendant F.O. Downing was the owner and in possession of $10,000 in money in Multnomah county, Oregon, which said money was liable to the execution upon the judgment herein; that said referee found as a conclusion of law that said defendant be required to pay said $10,000, or as much thereof as may be necessary to satisfy said judgment, within 10 days from the entry of judgment therein, said report of said referee being especially referred to herein and made a part of this affidavit, as the same appears in the record in this cause; that upon April 4, 1898, this court duly confirmed the report of the said referee, and entered judgment and order herein that the said defendant F.O. Downing, on or before April 16, 1898, apply said sum of $10,000, or so much thereof as may be necessary, in satisfaction of the said judgment of plaintiff; that the said F.O. Downing has failed and refused to comply with said order, and has paid upon said judgment no part of the same, and the whole thereof is now due, owing, and unsatisfied, and, unless the said Downing is compelled to pay the same on said order, the said judgment will be wholly lost to the plaintiff; that said F.O. Downing has no other property on which execution may be levied. Wherefore, affiant prays that said defendant F.O. Downing be ordered to appear before this court to show cause why he should not comply with said order or be punished as for contempt. Thos J. Hammer.

"Subscribed and sworn to before me this June 29th, 1898. E.E. Coovert, Notary Public for Oregon."

Thereupon an order was issued requiring the defendant to appear in said court on July 7, 1898, to show cause why he should not be punished for contempt. At the time so appointed the defendant appeared and demurred on the ground that the court had no jurisdiction to make said order, and that the affidavit on which it was based does not state facts sufficient to warrant the court in making it. The demurrer being overruled, the defendant, on August 8, 1898, interposed another on the ground that there was a defect of parties plaintiff, in that the state of Oregon was not named as a coplaintiff; but, this demurrer being also overruled, an answer was filed November 26, 1898, admitting that on April 4, 1898, the court made an order wherein Downing was required on or before April 16, 1898, to apply the sum of $10,000, or so much thereof as might be necessary, in satisfaction of a judgment rendered October 29, 1897, in favor of Hammer and against Downing, Hopkins & Co. It is also alleged that at the time said action was commenced a writ of attachment was issued, in pursuance of which certain property of the defendants was attached, and by the judgment ordered sold, but no execution had been levied thereon; that Downing was also the owner of other property, which, together with that so attached, was amply sufficient to satisfy said judgment; that the order in the proceedings supplemental to execution, upon which the order herein is based, is not supported by evidence, but is based upon a presumption of fact not applicable thereto. The allegations of new matter in the answer having been denied in the reply, the plaintiff, by leave of the court, amended the title by making the state of Oregon a party plaintiff. At the trial testimony was taken from which the court found that the defendant was guilty of contempt in disobeying the order of April 4, 1898, and that it was then in his power to comply therewith, and thereupon adjudged that he pay a fine of $25 and costs, and be imprisoned in the county jail of said county until he complied with the order, by applying said sum of $10,000, or sufficient thereof to satisfy said judgment, interest, and costs; and Downing appeals.

John H. Woodward, for appellant.

E.B. Watson, for respondent.

MOORE, J. (after stating the facts).

It is contended by appellant's counsel that the court had no jurisdiction of the subject-matter, and no authority to issue the order of April 4, 1898, because, the order requiring the judgment debtor to appear before the referee having been made by the judge at chambers, such judge only could issue a final order requiring Downing to satisfy the judgment, and that the order, having been made by the court, is void. The statute prescribing the mode of compelling the satisfaction of judgments in proceedings supplemental to execution, as far as deemed applicable herein, is as follows:

"After the issuing of an execution against property, and upon proof by the affidavit of the plaintiff in the writ, or otherwise, to the satisfaction of the court or judge thereof, that the judgment debtor has property liable to execution, which he refuses to apply towards the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear and answer under oath concerning the same, before such court or judge, or before a referee appointed by such court or judge, at a time and place specified in the order." Hill's Ann.Laws Or. § 308.

"On the appearance of the judgment debtor, he may be examined on oath concerning his property. His examination, if required by the plaintiff in the writ, shall be reduced to writing, and filed with the clerk by whom the execution was issued. Either party may examine witnesses in his behalf, and if by such examination it appear that the judgment debtor has any property liable to execution, the court or judge before whom the proceeding takes place, or to whom the report of the referee is made, shall make an order requiring the judgment debtor to apply the same in satisfaction of the judgment, or that such property be levied on, by execution, in the manner and with the effect as provided in title 1 of this chapter, or both, as may seem most likely to affect [effect] the object of the proceeding." Hill's Ann.Laws Or. § 309.

It was held in New York, in construing a statute of similar import that a preliminary order for the examination of the debtor might be granted by a judge at chambers, and, the proceedings being special in character, and designed to afford the creditor a speedy and efficient remedy against a dishonest debtor, they were to be controlled by the officer before whom they were instituted. Hulsaver v. Wiles, 11 How.Prac. 446. The statute construed in that case provided, in effect, that, when an execution against the property of a judgment debtor is returned unsatisfied in whole or in part, the judgment creditor is entitled to an order from a judge of the court, or a county judge of the county to which the execution was issued, or a judge of the court of common pleas for the city and county of New York, when the execution is issued to such city and county, requiring the judgment debtor to appear and answer before such judge, at a time and place specified in the order, within the county to which the execution was issued. How.Code N.Y. § 292. Our statute, it will be observed, is much broader than that of New York, and evidently framed so as to give the court or judge sufficient authority to issue a preliminary order requiring the judgment debtor to appear and answer concerning his property at a time and place specified in the order; and if, upon such examination, it satisfactorily appear that the debtor has property liable to execution, the judge is vested with plenary power to issue the final order, requiring him to apply the same in satisfaction of the judgment, or that the execution be levied on such property; and the same measure of power is also conferred upon the...