Williamson v. Johnson

• Court: Oregon Supreme Court
• Writing for the Court: BENSON, J.
• Citation: Williamson v. Johnson, 195 P. 562, 99 Or. 336 (Or. 1921)
• Decision Date: 15 February 1921
• Parties: WILLIAMSON v. JOHNSON ET AL.

195 P. 562

99 Or. 336

WILLIAMSON v. JOHNSON ET AL.

Supreme Court of Oregon

February 15, 1921

In Banc.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Suit by J. R. Williamson against Adolph Johnson and T. M. Hurlburt Sheriff of Multnomah County. Decree for plaintiff, and the last-named defendant appeals. Affirmed.

This is a suit to foreclose a chattel mortgage, and incidentally to restrain the sheriff from selling the mortgaged property upon execution, under a judgment in favor of another creditor. The defendant mortgagor made default, and the defendant sheriff appearing for himself alone, filed a demurrer to the complaint and a motion to dissolve the restraining order which had been issued. The demurrer having been overruled and the motion denied, the defendant declined to plead over and a decree was entered in favor of plaintiff, from which the defendant sheriff appeals.

Glen R. Metsker, of St. Helens, for appellant.

L. P. Hewitt, of Portland, for respondent.

BENSON J.

The action of the lower court in overruling the demurrer and denying the motion to vacate the injunction are the errors assigned.

The grounds of demurrer are specified as follows:

"First. That against this defendant the court has no jurisdiction of the subject-matter of this suit.

"Second. That there is a defect, or misjoinder, of parties defendant in that this defendant is not a proper party to said suit, and has no interest in the subject-matter set out in plaintiff's complaint.

"Third. That said complaint does not state facts sufficient to constitute a cause of suit against this defendant, or facts sufficient to entitle plaintiff to equitable relief."

The first and third of these specifications involve the same question, and will be so considered.

The second ground, misjoinder of parties defendant, is not a ground of demurrer, and may be dismissed from further consideration. Paulson v. Portland, 16 Or. 450, 19 P. 450, 1 L. R. A. 673; Tieman v. Sachs, 52 Or. 560, 564, 98 P. 163; Wolf v. Eppenstein, 71 Or. 1, 140 P. 751, and other cases there cited.

The other assignments of error appear to be based upon the theory that in no event can the aid of a court of equity be invoked to restrain an execution sale of personal property, since the remedy by way of replevin is adequate, in support of which defendant cites a number of the decisions of this court, but in none of these was the equitable power of injunction invoked in a proceeding wherein a court of equity had already acquired jurisdiction for other purposes. It is true that section 10184, Or. L., provides for foreclosure of such a chattel mortgage by an action at law, but this court has held, in Bank of Odgen v. Davidson, 18 Or. 57, 22 P 517, that under the general power of a court of equity to foreclose liens upon property equitable proceedings may still be maintained for the foreclosure of chattel mortgages. In the present case, then, the court acquired jurisdiction by virtue of the fact that the plaintiff seeks the foreclosure of his chattel mortgage. This being true, the plaintiff relies upon a well-recognized doctrine...