18 Or. 557 | Or. | 1890
The appellant’s counsel contends, first, that Rosenfeld, Smith & Co., in the original attachment suit, when Otelia DeWitt answered that she owed $1,000, should have taken judgment bn that answer against her, so that she might be protected from a second payment thereof; second, that having elected to take an order for the sale of the attached property, the plaintiff in the original attachment suit could not proceed to sell the property of the garnishee without first having obtained title to the property attached; that section 157 of the Code, as amended by the Act of October 21, 1878, changed the former rule concerning attachments, and if the plaintiff in the attachment proceedings elected to take this remedy it should have acquired title of claim against Otelia DeWitt before proceeding against her. Citing Carter, Rice & Co. v. Koshland, 12 Or. 492.
The statute does not permit a plaintiff in an attachment suit to take judgment against a garnishee on account of a debt owing by the garnishee to the defendant in the -suit, except where the latter refuses to furnish to the sheriff a certificate of the indebtedness, or when the certificate given is unsatisfactory, as provided in section 152 of the Code, as it is only in those cases that the proceedings provided for in sections 163, 165, 166 and 169 of the Code can he invoked. Hence the rule laid down in Carter, Rice & Co. v. Koshland, 12 Or. 492, and as modified in the same case in 13 Or. 615, has no application to the facts in this case. Here the appellant, after being garnisheed, gave a certificate admitting the indebtedness, which authorized the
The decree appealed from will therefore be affirmed.