Banning v. Roy
47 Or. 119
Or.
1905
Check Treatment
Mr. Justice Bean

delivered the opinion of the court.

1. Before the plaintiff can recover on the undertaking given by the defendants for the discharge of Romander from arrest, it must .appear that an execution against his person was legally issued on the judgment recovered against him.. The contention of the defendants is that no such execution could rightfully issue, because the judgment makes no reference to the arrest or the warrant therefor, nor does it provide thafit may be enforced by execution against the person. The question thus presented is whether, under our statute, to justify an arrest and imprisonment of a defendant upon an execution in a civil action, where he has. been provisionally arrested and discharged on bail, it is necessary that the judgment should show the issuance of the writ or an order therefor, or direct an execution against the person.

Section 218, B. & C. Comp., provides that, if the action is one in which the defendant might have been arrested as provided in section 260, an execution against the person *122may issue on the judgment therein after the return of an execution against his property unsatisfied in whole or in part (1) when it appears from the record that the cause of action is also a cause of arrest; (2) when the cause of arrest does not appear from the record the execution may issue for any of the causes prescribed in section 260 that may exist at the time of the application ; and (3) “when the defendant has been provisionally arrested in the action, or an order has been made allowing such arrest, and in either case the order has not been vacated.” In the first and third the execution issues as a matter of course, but in the second it can only be issued upon leave of the court or judge thereof. This section- (218) is the only law providing when and under what circumstances an execution may issue against the person of a defendant in a civil action, and it does not require or contemplate that the judgment shall contain any reference to the matter. If the action is in fact one in which thé defendant might have been arrested, and the other conditions provided by section 218 exist, it is sufficient to entitle the plaintiff to an execution against his person, without any order to that effect in the judgment: Corwin v. Freeland, 6 N. Y. 560; Hutchinson v. Brand, 9 N. Y. 208; Elwood v. Gardner, 45 N. Y. 349.

2. Unless the statute otherwise provides, a judgment is limited to the relief sought by the pleadings (11 Enc. Pl. & Pr. 958), and it need not specify the kind or character of the execution which may be issued for its enforcement: Cooney v. Van Rensselar, 1 Code Rep. (N. Y.) 88. When the judgment is rendered, the law, and not the court, determines that question. There .are two kinds of executions on judgments for the recovery of money in this State — one against the property and the other against the person : B. & C. Comp. § 214. An execution against the property generally issues as of right, but an execution against the person can only issue in certain enumerated cases and *123under certain particular circumstances: B. & C. Comp. §§ 218, 260. One of these is that it may be issued when-the defendant has been provisionally arrested or an order has been made authorizing his arrest and is still in force, and the execution against his property has been returned unsatisfied, in whole or in part. And such was the case under consideration. It appears from the pleadings that the defendant in the action in which the undertaking for bail was given had been provisionally arrested, that the order for his arrest has not been vacated, and an execution against his property has been returned unsatisfied. The case, therefore, comes within the statute. The California and Washington cases relied upon by the defendants were under different statutes and are not controlling here: Burrichter v. Cline, 3 Wash. St. 135 (28 Pac. 367); Matoon v. Eder, 6 Cal. 57; Davis v. Robinson, 10 Cal. 411; Payne v. Elliot, 54 Cal. 339 (35 Am. Rep. 80).

3. The other matters alleged in the answer as defenses were not argued in the brief of defendants, and are without merit. The neglect of the sheriff to return the writ of arrest before judgment was a mere irregularity for which the plaintiff was not chargeable (Neimitz v. Conrad, 22 Or. 164, 29 Pac. 548), and which in no way affected the validity of the arrest or the order therefor, or the undertaking given by the present defendants.

4. Nor is it any defense that Romander was in attendance upon the court during the term at which the judgment was rendered or remained within its jurisdiction for a few days thereafter. One of the conditions of the undertaking is that he would at all times render himself amenable to such process as might be issued to enforce the judgment, and there is no claim that execution against his person was not issued within the time, if it could legally be issued at all.

*1245. The sufficiency of the complaint in the action brought against him was, of course, determined by the court rendering judgment, and cannot be questioned in this collateral proceeding.

The judgment of the court below is reversed, and the cause remanded for such further proceedings as may be proper not inconsistent with this opinion. Reversed.