100 P. 1103 | Or. | 1909
Opinion by
This is an action by M. A. M. Ashley and C. E. Rumelin, partners as Ashley & Rumelin, against C. O. Pick, who was doing business under the firm name of C. O. Pick Transfer & Storage Company, to recover the value of certain counters, shelving, cases, etc., ’ which, it is alleged, the defendant converted to his own use.
The answer denies the material averments of the complaint, sets forth a copy of the receipt, which recites that it should be non-negotiable, and contains the following allegations:
“(5) That afterwards, to-wit: on the 1st day of May, 1907, in a civil action for recovery of money then pending in the justice court for Portland district, Multnomah County, State -of Oregon, wherein D. H. Smith was plaintiff and said A. J. Parrington and Olive Parrington, his wife, were defendants, a writ of attachment was duly issued, commanding the constable of said district, of the personal property of said defendant, to attach and safely keep to satisfy the demands of plaintiff in said action, together with the costs and expenses thereof. That under and pursuant to said writ all the personal property described in said complaint and so received by this defendant was duly attached and levied upon as the property of said defendants in said action. That after-wards, and on the 6th day of June, 1907, said court having jurisdiction over said defendant and the subject-matter of said action, rendered a judgment therein in favor of said plaintiff, and against said defendant, and all of said attached property was by the order of said court directed to be sold to satisfy said judgment. That, pursuant to such order and judgment of said court, the constable of said district did. on or about the 22d day of June, 1907, take from the possession of this defendant all of said personal property, and pursuant to said judg*413 ment and order of sale, after having duly advertised the same, sold all said personal property to satisfy the judgment so rendered by said court in such action against said defendants A. J. Parrington and wife.
“(6) Further answering, defendant avers that he had no knowledge or any information of any sale, assignment, or transfer of the receipt so issued by him for the personal property so received from said A. J. Parrington and wife prior to the said 27th day of July, 1907, and long after the attachment levy upon and sale of said personal property; that said plaintiffs knew and were well aware that all of said personal property was so attached and levied upon as the property of said A. J. Parrington and wife, and was being advertised and sold as such; that the place of business of plaintiffs is in the same vicinity as that of defendant, and, during all the while said property so sold under attachment (was) being advertised and sold to satisfy the judgment against said Parrington and wife, the said plaintiffs, being fully advised thereof, acquiesced therein, and- did not then or ever prior to such sale make any claim of ownership or any interest in said personal property, or cause any information to be given to this defendant that they had or claimed the same or any interest therein; that solely by reason of such acquiescence of plaintiffs in the proceedings then being had to subject the said property to the payment of said judgment, and the lack of any knowledge or information that plaintiffs claimed said property or any interest therein, this defendant took no appeal from the order and judgment of said court, directing the sale of said property, or any steps to enjoin the constable of said district from taking possession of said property under said writ, and this defendant alleges that, by reason of the acquiescence of plaintiffs on such levy and sale of said property, the plaintiffs are now estopped from making claim thereto.”
A demurrer to the quoted parts of the answer, on the ground that the facts so stated did not constitute a defense, was sustained, and, a trial being had on the remaining issues, a judgment was rendered against the defendant for the sum of $200, and he appeals.
“In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction.” Section 87, B. & C. Comp.
Notwithstanding this change in the common-law rule, a demurrer was sustained to a complaint which averred that a judgment in a justice’s court was “duly” rendered, because the facts stated did not show that an action had been commenced, or allege that jurisdiction of the subject-matter had been secured. Page v. Smith, 13 Or. 410 (10 Pac. 833). The principle thus asserted was observed in Willits v. Walter, 32 Or. 411, 417 (52 Pac. 24, 25), where, in referring to the statute, which makes it unnecessary to state the facts conferring jurisdiction of
Though the conclusion we have reached in the case at bar may not render it necessary to examine the sufficiency of that part of the answer which relates to the judgment alleged to have been rendered by the justice’s court, the reiteration of the notice mentioned is in our opinion a sufficient justification for a consideration of the question. It will be remembered that the answer states that a writ of attachment was “duly” issued, but it is not averred that the judgment was “duly” given or made, as required by statute. Section 87, B. & C. Comp. On the ground that the averment was equivalent to a statement that the judgment had been “duly given or made,” it is possible that the allegation, “said court having jurisdiction over said defendant and the subject-matter of said action rendered a judgment therein,” would have been adequate if its sufficiency had not been challenged by a demurrer. Pierstoff v. Jorges, 86 Wis. 128 (56 N. W. 735: 39 Am. St. Rep. 881, 884).
Reversed.