219 P. 1081 | Or. | 1923
The garnishee contends that in two important particulars the allegations and interrogatories are not sufficient, when regarded as the plaintiff’s complaint, to support the judgment.
The plaintiff avers in the allegations that—
“On the 28th day of March, 1921, the plaintiff herein secured a valid judgment duly and originally entered in the above entitled court and cause against the defendants, J. Howard Carroll, Charles A. Fertig and W. T. Moore, doing business under the assumed name of Forest Products Sales Co. for the sum of $467 together with the further sum of $7.20 costs, and that said judgment is still in force and effect.”
The plaintiff avers in the allegations that the corporation was
“in truth and in fact indebted to the said defendants in the sum of $303.93, and had that sum of money in their possession, and that there was and is no*329 legal offset or counterclaim to the said indebtedness.”
The garnishee argues that the quoted averments are no more than conclusions of law, and that the judgment cannot stand because it is not supported by pleadings stating sufficient facts to constitute a cause of action. The garnishee claims that the plaintiff’s pleading is fatally defective because it does not sufficiently allege: (1) A judgment against the defendants; and (2) an indebtedness owing from the garnishee to the defendants.
Turning to the two papers filed by the garnishee as its answer to the allegations and interrogatories, we find that the garnishee avers that it purchased from the defendants, on November 27, 1920, 14,317 feet, and on December 2, 1920, 14,811 feet of alder lumber at $35 per thousand f. o. b. Portland, totaling $1,019.48; that, after paying $215.55 freight, a balance of $803.93 was due from the garnishee to the defendants; that on December 2, 1920, the garnishee paid the defendants $500, leaving a balance of $303.93;
“that thereafter, on April 18, 1921, the garnishee paid on execution in the above-entitled cause, to T. M. Hurlburt, Sheriff of Multnomah County, Oregon, the sum of $139.85, leaving a balance of $164.08 against which the garnishee claims -a valid offset or counterclaim.”
The counterclaim relied upon by the garnishee arose out of the following facts averred by the corporation: At the time of the purchase of the alder lumber six employees of the defendants had filed liens on the lumber. After the garnishee purchased the lumber and paid the defendants all of the purchase price except $303.93, the lien claimants instituted suits in the Circuit Court for Clatsop County against the defendants and the garnishee for the foreclosure of the liens which together with demanded attorney’s fees aggregated $1,525.81. The lumber was sold to the garnishee with the understanding and agreement that it was free from liens. Upon being served with papers in the foreclosure suits, the corporation employed an attorney to defend
The garnishee admits — •
“that an execution garnishment was served upon it, on or about the 2nd day of April, 1921, and that it answered said garnishment showing that it had in its hands the sum of $139.85 over and above all setoffs against the defendants, and admits that it paid .said sum over to the sheriff of Multnomah County, Oregon, on said execution.”
The garnishee alleges the following:
“That said sum of $139.85 was paid over to the said sheriff after said garnishment had been served upon said garnishee and after the attorneys for the plaintiff had been notified that the garnishee claimed an offset or counterclaim against the amount of money in their hands over ánd above the sum of $139.85, at the request of the attorneys for said plaintiff and with full knowledge of the facts with reference to said offset or counterclaim; and garnishee further alleges that said plaintiff by reason of having requested, through his attorney, the garnishee to pay over to the sheriff of Multnomah County, Oregon, on said execution and garnishment said sum of $139.85 is estopped from claiming that said return of said garnishment is not satisfactory.”
Thus it is seen that the garnishee admits, by implication at least, that the plaintiff owns an unsatisfied judgment against the defendants; and the garnishee expressly admits that he was garnished and that he paid $139.85 to the sheriff on the faith of the execution issued upon the judgment held against the defendants. Manifestly the averment about the rendition of the judgment made in the allegations, when considered in connection with the pleadings
It is also obvious that the garnishee has in its pleadings supplied all the facts which the corporation claims should be alleged by the plaintiff in order to show an indebtedness owing from the garnishee to the defendants. The garnishee admitted that at the time of the service of the garnishment process it owed $303.93 to the defendants. The corporation paid $139.85 to the sheriff and retained $161.08 on the theory that to such extent it had a counterclaim against the defendants. The garnishee confessed the indebtedness alleged by the plaintiff and then attempted to avoid the liability by asserting a counterclaim. The burden of alleging and proving the counterclaim was on the garnishee. The court refused to recognize the counterclaim. The record on appeal includes nothing but the pleading’s, and the findings and judgment of the Circuit Court. The two points concerning the sufficiency of the allegations are the only questions presented to us for decision. We conclude that the allegations are sufficient when considered in connection with the admissions and affirmative averments made by the garnishee. The judgment is affirmed.
Affirmed.
