18 Or. 491 | Or. | 1889
Lead Opinion
The question presented herein for the consideration-of the court is: Whether an execution can be issued upon a judgment after the death of the judgment debtor. Our probate jurisdiction is so extensive, and has been resorted to so generally in the adjustment and settlement of claims against the estates of deceased persons, that no other mode to effect such object has been considered than that pointed out in the probate Act. Hence, the proposition, that an execution against the property of a judgment debtor can be issued after his death upon a judgment recovered during his lifetime, is liable to be startling, as it creates the impression that the officer to whom the writ is issued can séize and sequester the property of the deceased regardless of the authority of the probate court or the order of preference in the payment of claims against the estate as provided by law. No attempt seems to have been made in this State to issue an execution against a deceased person, except in the case of Knott v. Shaw, 5 Or. 482. It was held in that case, as appears from the syllabus, that.the statute gave the State a lien upon all property, real and personal, of a criminal from the time of the commission of the crime; and that when such property had been sold, either by the party convicted, or by his executor or administrator, it was chargeable with the incumbrance in the inverse order of its alienation—that the property last sold was to be first charged. This statement of the law in the case was, in my opinion, altogether too broad, and is liable to be misleading. The latter proposition contained in the statement, to the effect that when such property had been sold by the
The Code, § 281, provides that, “Notwithstanding the death of a party after judgment, execution thereon against his property, or for the delivery of real or personal property, may be issued and executed in the same manner and with the same effect as if he were still living; but such execution shall not issue within six months from the granting of letters testamentary or of administration upon the estate of such party, without leave of the county court or judge thereof;” and subdivision 2 of § 276 of the Code provides that, “If it be issued after the death of the
It is somewhat remarkable that the legislature provided two modes in the same Act, and at the same time, for the enforcement of payment of this character of claims; but it has evidently made such provision, as will be seen by reference to the sections of the Code herein set out, and I see no other alternative than to adopt the rule applied by a majority of the court of appeals in Mount v. Mitchell et al 31 N. Y. 360, where a similar question was considered, which is: “That two statutes shall stand together and both have effect, if possible, for the law does not favor
. Again, how can the order of preference in the payment of claims against the estate as provided by § 1183 be maintained in such case? And again, what justice would there be in making the executor- or administrator personally liable to each creditor included in the order determining and prescribing the amount of assets applicable to the claims presented, as provided in § 1190, if the sheriff by virtue of such execution could seize the identical assets and apply them to the payment of a judgment which had never been presented .to the executor or administrator? At common law the judgment in such a case had to be reviewed by a writ of scire facias, which stated that the testator died, having made the defendant his executor, or, in the case of an administrator, the death of the intestate, and the grant of administration, and it called on the defendant to show why the plaintiff could not have execution of the debt or damages, to be levied of the goods and chattels which were of the testator or intestate, at the time of his death, in the defendant’s hands to be administered. Pages 2104, 2105, Williams on Exec. And, by the common law, the executor might jilead that he had no assets, or not enough to satisfy the plaintiff's demand after satisfying other demands having a preference; and the plaintiff either admitted this plea, and then could only take judgment of assets when they should thereafter be received, or he took issue on the plea, and then his judgment still was special as in other cases. Mills v. Thursby, 12 How. Pr. 391. Counsel for the respondent says that two results were effected by section 281 and subdivision 2, section 27G, of the Oregon Code: (1) To brush away the technicalities
We must determine, therefore, that the grounds of error relied on by the appellant are untenable. But it is important that it be understood that our affirmance of the decision of the circuit court appealed from merely determines the right to have an execution issued in such a case requiring the sheriff to satisfy the judgment out of any property in the hands of the debtor’s personal representatives, heirs, etc. In what way the sheriff will be able to
Rehearing
Upon the hearing of this case we were of the opinion that the respondent was entitled, under the statute, to have an execution issued upon the judgment recovered against Ben Holladay in his lifetime, and ordered an affirmance of the decision of the circuit court appealed from.. In making that- order, however, we overlooked the matter of the form of the execution which had been issued, and which the appellant sought to have set aside. We supposed that the execution was in the general form as prescribed by the Code, but discover now that it contains recitals and requirements which we think the Code does not authorize. The recital that the appellant and Geo. W. Weidler, as receivers of the court, held certain of the property of the deceased, and that said Weidler was the trustee, and held as such, or under his control, other property belonging to the deceased, including about 5,881 shares of the capital stock of the Willamette Real Estate Company, was improper. The court out of which the execution issued could not have known judicially the facts recited. Nor was it proper to include in the
The. appellant’s counsel insists that no execution' can issue in such a case unless the judgment-creditor has a lien upon property belonging to the estate of the deceased, and then only as against such property. But- the provision of the_ Code referred to gives the judgment creditor the right to a general execution. It says that, “Notwithstanding the death of a party after judgment, execution thereon against his property, etc., may be issued and executed in the same manner and with the same effect as if he were still living.” We suggested, however, in the former opinion delivered in the case, that said provision of the Code would have to be construed with ■ the provisions of the probate Act adopted at the same time, and that it was very doubtful whether the sheriff, by virtue of such a
The case will therefore be remanded, with directions to amend the writ of execution as suggested. No costs or disbursements will be allowed to either party .upon this appeal; each party will be required to pay one-half of the fees of the clerk of this court’ chargeable herein
Concurrence Opinion
concurring.—The only question here is, the right of the plaintiff to have an execution issue, and the result reached accords this right, as seems to have been held in Shaw v. Knott, supra, but how the execution may be enforced against property in the hands of an administrator or executor is a matter not presented by this record, and upon which I refrain from expressing any opinion until that phase of the question shall come properly before us, and only then after full discussion.
I am authorized to say that Strahan, J., concurs in this view.