Bank of Winnemucca v. Mullaney, 45 P. 796

Bank of Winnemucca v. Mullaney

45 P. 796 | Or. | 1896

Opinion by

Mr. Justice Moore.

The only question involved is as to the authority of the court to discharge the real property from said lien. The defendant contends that this authority is conferred by section 161, Hill’s Code, which provides that the defendant may, at any time before *270judgment, except where the cause of attachment and the cause of action are the same, apply to the court or judge thereof, where the action is pending, to discharge the attachment, in the manner and with the effect as provided in sections 130 and 131, for the discharge of a defendant from arrest. This was section 159 of the General Laws of Oregon, as compiled by Matthew P. Deady and Lafayette Lane, and should be construed in pari materia with the other sections of the act then in force. Section 143 of that compilation authorized the issuance of a writ of attachment upon other grounds than the cause of the action, but this section has been several times amended, and appears as section 145, Hill’s Code, as amended by the act of the legislative assembly, approved February twenty-third, eighteen hundred and ninety-five, (Session Laws, 1895, p. 58,) and now provides that the writ may issue in all actions upon contract for the payment of money without specifying any other cause therefor. In the case at bar an examination of all the proceedings discloses that the cause of action and the cause of attachment are the same, and, this being so, the defendant can not invoke the aid of the section in question. The statute furnishes a summary method for trying the title to personal property attached when claimed by a third person, (Section 156, Hill’s Code,) but it contains no similar provision for trying the title to real property. Assuming that the defendant’s wife is the owner in fee of the premises attached; no proceedings had or judgment rendered against her husband could in any manner affect her title, except *271as they may give the right to question such title in a suit against her. It must be presumed that the plaintiff, by attaching the land of the defendant’s wife, had a theory that she held the title to it in trust for him, and that by acquiring a lien thereon it would be in a position to try that question. The plaintiff assumes the responsibility of answering in damages if the attachment should turn out to be wrongful or without sufficient cause; but its right to attach the land, and thus test the correctness of such theory cannot be questioned. A motion to discharge an attachment is always based on defects apparent on the face of the proceedings, (Drake on Attachment § 415,) and as there are no -defects apparent, it follows that the court erred in allowing the motion. The judgment of the court below must be modified to conform to the views herein expressed, and the cause will be remanded with instructions to deny the motion, reinstate the lien of the attachment on the real property, and add to the judgment an order for the sale of the defendant’s interest therein; and as thus modified the judgment will be affirmed, the appellant to recover of the respondent its costs and disbursements in this court and the court below. Reversed.