66 P. 916 | Or. | 1901
delivered the opinion.
This is a proceeding supplemental to an execution, to compel the satisfaction of a judgment. The plaintiff filed an affidavit, from which it appears that he secured a judgment against the defendants F. O. Downing and F. H. Hopkins, partners as Downing, Hopkins & Co., in the circuit court for Multnomah County, October 29, 1897, for the sum of $7,817.50 and his costs and disbursements; that an execution was issued thereon November 24, 1897, and delivered to the sheriff of said county, who in pursuance thereof demanded from the defendant Hopkins payment of the sum stated therein, or information as to the defendants’ property liable to be seized under the writ, which demand was refused; that the sheriff, after due and diligent search and inquiry, was unable to find any property belonging to either of them out of which he could make more than a small part of the sum so demanded. He further deposed, upon information and belief, that each of said defendants had money, stocks, notes, mortgages, and real estate liable to such execution, which he refused to apply toward its satisfaction, and greater in amount than was required for that purpose; stating the sources of his information, specifying the alleged property, estimating its value, and praying for an
It is contended by defendant’s counsel that the findings of fact are insufficient to support the final order. The examination before the referee was held December 23, 1897, and he found, from the testimony taken and incorporated in the bill of exceptions, that the defendant Downing, from April 24, 1897, to September 1st of that year, had in his possession, in Multnomah County, money liable to execution in a sum not less than $10,000, and, no testimony having been offered tending to show that any of this sum had been paid out, he still had the same in his possession. The finding that Downing was still possessed of said smn of money is a conclusion of law, resulting from the application of the disputable presumption that a thing once proved to exist continues as long as is usual with things of that nature: Hill’s Ann. Laws, § 776, subd. 33. The question thus presented is whether a sum of money usually continues in the possession of the same person for more than three months. Money, in addition to its intrinsic worth, is only valuable as a medium of exchange, just in proportion as it freely circulates. Misc.s hoard money; but this propensity is not the general characteristic of people engaged in active business, who expect to secure an increase of their capital by its use. The habit of secretly storing money does not prevail among persons who expect to secure interest by loaning it to others. In times of financial depression money is usually withdrawn from circulation; but such retirement results from the owner’s fear of its loss. As soon as such apprehension is allayed, however, the money is restored to its field of former usefulness. No testimony was offered tending to show that from September 1, 1897, to December 23d of that year, the time appointed for the examination of the judgment debtor, a condition of monetary stagnation prevailed in Portland, Oregon, nor does it appear that Downing was a miser. In Williams v. Harrison, 19 Ala. 277, it was held that when money is shown to
A better reason for concluding that the presumption relied upon to sustain the final order is insufficient for that purpose is based on the fact that, as the judgment debtor’s failure to apply property found in his possession or under his control to the satisfaction of a judgment in proceedings supplemental to execution renders him liable to be punished as for a contempt of court (Hill’s Ann. Laws, § 310), the proof of such possession ought to be conclusively established by the weight of the testimony given at such examination, and not deduced from disputable presumptions. The court having erred in making the final order, it must be set aside. Reversed.