87 P. 265 | Or. | 1906
Lead Opinion
delivered the opinion.
It is contended by defendants that the deed from Kane to the plaintiff was intended as a mortgage to secure the payment of money, and therefore conveyed no interest or title in the property to Haines, and hence will not support a suit to remove a cloud from title; .and also that this suit was prematurely brought because the action of Schoch v. Kane, in which the writ of at-' tachment issued, had not passed to judgment at the time it was commenced. In view of the conclusion we have reached as to the merits of the controversy, it is not necessary to examine these questions, although they are important.
“Real property shall be attached as follows: The sheriff shall make a certificate containing the title of the cause, the names of the parties to the action, a description of such real property, and a statement that the same has been attached at the suit of the plaintiff; and deliver the same to the county clerk of the county in which the attached real estate is situated:” B. & C. Comp. § 301.
The certificate in question admittedly contains in the body thereof all the essential requirements of the statute. It states the title of the case by giving the name of the court in which the action was pending, the names of the parties, a description of the property attached, and states that it was attached at the instance (which is equivalent to suit) of the plaintiff, and is, therefore, in our opinion, sufficient. There is no requirement in the statute that the title of the cause and the names of the parties shall be stated as a heading or caption to the certificate, as required by Section 67 in the case of a complaint. The statute provides that a complaint shall contain (1) the title of the cause, specifying the name of the court and the names of the parties plaintiff and defendant; (2) a plain'and concise statement of the facts constituting the cause of action; and (3) the relief demanded; which would seem to contemplate that these requisites should be stated in the order named, notwithstanding which it has been held that the stating of the names of the court and of the parties in the caption of a complaint is a formal, and not a jurisdictional, matter: Adams v. Kelly, 44 Or. 66 (74 Pac. 399); Smith v. Watson, 28 Iowa 218; Hill v. Thacter, 3 How. Prac. (N. Y.) 407; Van Namee v. Peoble, 9 How. Prac. (N Y.) 198. The statute regulating the attachment of real
It follows from these views, that defendants’ attachment takes precedence over the rights acquired by the plaintiff by his deed from Kane, and the complaint must be dismissed.
Reversed.
Rehearing
On Motion for Rehearing.
delivered the opinion.
The petition for rehearing is denied.
Reversed: Rehearing Denied.