U.S. v. Cohn

• Decision Date: 30 June 1954
• Citation: 272 P.2d 982,201 Or. 680
• Parties: UNITED STATES v. COHN.
• Court: Oregon Supreme Court

Page 982

272 P.2d 982

201 Or. 680

UNITED STATES v. COHN.

Supreme Court of Oregon.

Argued and Submitted March 3, 1954.

Decided June 30, 1954.

Hubert H. Margolies, Washington., D. C., for appellant. With him on the brief were Holmes Baldridge, Washington, D. C., Henry L. Hess, U. S. Atty., Portland, and Paul A. Sweeney and Robert Mandel, Attys. for Department of Justice, Washington, D. C.

Dan M. Dibble, Deputy Dist. Atty. for Multnomah County, Portland, for respondent. With him on the brief was John B. McCourt, Dist. Atty. for Multnomah County, Portland.

Before WARNER, Acting C. J., and LUSK, BRAND and PERRY, JJ.

BRAND, Justice.

The United States of America as plaintiff filed in the circuit court of Multnomah County, Oregon, a petition for a writ of mandamus to compel the county clerk of that county to issue a writ of attachment in the case of the United States of America v. Griffith Annesley and Elizabeth Annesley, husband and wife, which had been previously filed in the circuit court of Multnamah County. An alternative writ of mandamus was issued directing the clerk to issue the writ of attachment or show good cause for his failure so to do. The defendant filed a demurrer to the alternative writ contending that he was without power or authority to issue a writ of attachment unless an undertaking was first filed as required by Oregon law. The position of the United States was that it was not subject to that law. The circuit court sustained the demurrer and 'denied' the writ of mandamus. The United States appeals.

Plaintiff has set forth in its abstract of record the petition for a writ of mandamus together with the exhibits which were attached thereto and incorporated therein and which were as follows: Exhibit A, the complaint in the action at law wherein the United States was plaintiff and Griffith Annesley and Elizabeth Annesley were defendants; Exhibit B, the affidavit for attachment filed in that case; and Exhibit C, the form of a writ of attachment which was tendered to the county clerk for execution but not executed. The writ of mandamus, however, contains no copy of any of said exhibits nor does it set forth the allegations contained in them. The alternative writ of mandamus is addressed to the defendant Si Cohn, county clerk. It recites that 'it manifestly appears to the above-entitled Court by the verified petition of plaintiff * * *'. Then follows an enumeration of the matters which manifestly appear from the petition as follows: (1) The official capacity of the defendant; (2) the capacity of the plaintiff; (3) that the United States was plaintiff in an action filed in the circuit court against the defendants Annesley; (4) that with the filing of the complaint plaintiff filed its affidavit of attachment and requested and demanded that the defendant issue a tendered writ of attachment; (5) that the defendant refused to issue the writ upon the ground that as a condition precedent to its issuance it was necessary for the plaintiff to file a good and sufficient undertaking as provided in section 7-203 O.C.L.A. The writ continues that it was then and there the defendant's duty to issue the writ upon such demand but that the defendant violated his duty and refused to issue the writ. The alternative writ further recites that the issuance of the writ is indispensable to the enforcement of the petitioner's rights and that there is no plain, speedy or adequate remedy at law, and it then commands the defendant to issue the writ or show cause why he has not done so. The remaining portion of the writ is immaterial to our consideration of this question.

In the very recent case of State ex rel. Bethke v. Bain, 193 Or. 688, 694, 240 P.2d 958, 961, this court said:

'It is well established in this state that a petition for mandamus is no part of the pleadings. It is the writ that serves the same purpose as the complaint in other actions, and in the writ itself must be stated all the material facts; it must show on its face a clear right to the relief demanded. If any exhibit, such as a copy of the complaint in the original action, is material, it must be attached to and made a part of the writ or, in lieu thereof, pleaded therein. Otherwise, it is not before the court. Crawley v. Munson, 131 Or. 428, 283 P. 29; State ex rel. Bell v. Pierce, 118 Or. 533, 247 P. 812; Elliott v. Oliver, 22 Or. 44, 29 P. 1.

'The defective writ in this proceeding could have been reached by demurrer. * * *'

We cannot deviate from a rule of pleading which was announced as early as 1891, see McLeod v. Scott, 21 Or. 94, 26 P. 1061, 29 P. 1, which has been repeatedly stated in later decisions and expressly defined and applied in the case of State ex rel. Bethke v. Bain, supra. Irrespective of the rule of pleading which limits us to a consideration of the allegations contained in the alternative writ, it is firmly established in this state that no petitioner is entitled to the remedy of mandamus unless he has a clear legal right to the performance of the particular duty sought to be enforced and unless there is a plain legal duty on the part of the defendant to perform the act. State ex rel. Scott v. Dobson, 171 Or. 492, 135 P.2d 794, 137 P.2d 825; Ross v. County Court of Marion, 147 Or. 695, 35 P.2d 484; Morris, Mather & Co. v. Port of Astoria, 141 Or. 251, 15 P.2d 385; State ex rel. Rudd v. Ringold, 102 Or. 401, 202 P. 734; State ex rel. Coffey v. Multnomah County, 82 Or. 428, 161 P. 959; State ex rel. Gibson v. Malheur County Court, 46 Or. 519, 81 P. 368.

In State ex rel. Bowles v. Olson, 175 Or. 98, 151 P.2d 723, an original proceeding in mandamus was brought by the state upon the relation of Chester Bowles to compel the respondent district judge to take jurisdiction of an action for triple damages under the Emergency Price Control Act. As in the case at bar there was a demurrer to the alternative writ. In that case we said:

'* * * The writ must show at least prima facie a clear right existing in the relator to have the thing done which he seeks to enforce. Such writs are not favorites of the law and should state every fact necessary to entitle the relator to the relief demanded. The writ must therefore show that the relator has performed all of the acts which are made a condition precedent to his right to relief and the existence of all facts necessary to put the respondent in default. It must show the special interest of the relator and must negative any facts which under the statute relied upon might defeat his right to maintain the action. * * *' 175 Or. at page 106, 151 P.2d at page 727.

We have adequately summarized the allegations of the alternative writ. We will now enumerate certain matters that are not set forth therein, bearing in mind the authorities cited supra. There is no authority to issue an attachment in an action at law except in actions upon contract express or implied, actions against a nonresident of the state to recover money as damages for breach of any contract express or implied, or actions against a nonresident of the state for money damages for injury to property in the state. ORS 29.110.

The writ does not allege any contract between the plaintiff and the defendants Annesley or either of them. It does not allege that either of said defendants was indebted to the plaintiff in the action which was brought against them. It does not allege that either of said defendants has personal property in Oregon. It does not allege that the defendants or either of them...