10 Or. 362 | Or. | 1882
By the Court,
On October 1st, 1881, H. J. Butler commenced an action to recover money, in the circuit court for Linn county, against L. T. Berry, the respondent here, and at the same time procured a writ of attachment to be issued in such action, and levied on a span of horses, set of harness, and wagon belonging to the latter. J. J. Charlton, the appellant, was sheriff of said county at the time, and levied the attachment; Berry duly claimed the property as exempt from execution, but it was not released. Afterwards, Butler recovered judgment and order for the sale of the attached property, and caused an execution to be issued in conformity with such order, and delivered to Charlton as such sheriff. Before Charlton had succeeded in making a sale of the property, this action ivas commenced against him by Berry, in the county court of Linn county, to recover possession thereof. Berry obtained judgment for the possession of the property, in the county court, and a similar one in the circuit court, on appeal. From the latter judgment Charlton appeals to this court. His counsel have rested their claim to have the decision of the circuit court reversed, upon the determination of the single question,
The provision in the amended section which is to be construed is as follows: “ If judgment be recovered by plaintiff, and it shall appear that property, has been attached in the action, and has not been sold as perishable property, or discharged from attachment, as provided by law, the court shall order and adjudge the property to be sold, to satisfy the plaintiff’s demand. (Sess. L., 1878, p. 100.) Previous to the adoption of this amendment, the law itself directed how attached property should be disposed of, after judgment rendered, and no action of the court was necessary. The precise purpose and effect of this amendment are not entirely free from doubt, and have occasioned a considerable amount of discussion. Without attempting a complete set-' tlement of these questions, we are fully satisfied that the order of sale provided for in sec. 155, as amended, cannot be accorded the effect of an adjudication upon the status of the property attached, as to its being exempt or not from execution. Under the laws of this state, exempt property, if claimed as such in due season, can neither be seized under attachment nor sold on execution. Yet there is no provision for determining the question whether it is, in fact, exempt or not, either in the attachment proceeding or in the action itself in which the attachment is issued. There is no provision in the attachment law for obtaining the release of exempt property wrongfully seized under a writ of attachment. But, on the other hand, the right to maintain an action like the present to recover the possession of exempt property wrongfully seized under process, is clearly