174 P. 531 | Or. | 1918
At the time of the execution of the first writ of attachment on April 14,1915, the sheriff proceeded with the writ to the lumber-mill and plant of the attachment defendant Gebhardt Lumber Company. Mr. G„ D. Palmer, secretary and manager of the Gebhardt Lumber Company, was there and was informed by the sheriff that he was about to attach the property of that company. Mr. Palmer pointed out one of the donkey-engines in question in this action and informed the sheriff where the other donkey-engine was in the woods, and furnished the sheriff with a complete list of all the personal property of that company, and the same was taken possession of by the sheriff as Ms re
A bailee to whom attached property is intrusted by the sheriff is the agent, of that officer for keeping it. It is still in the constructive possession of the court, still legally in the hands of the sheriff, by the bailee holding under him as his representative or agent: Waples on Attachment, p. 284; 4 Cyc. 663.
The possession .of P. A. Flynn, the sheriff’s deputy and receiptor of the personal property attached in the first action, was the possession of the sheriff at the
In the case at bar, it appears that the sole stockholders and directors of the Gebhardt Lumber Company were V. Gebhardt, Gus Arndt, and G. D. Palmer, the first named being president and the last named, secretary and manager of the corporation. The PalmerHaworth Logging Company was organized on the tenth day of March, 1915, with the same stockholders and directors as the Gebhardt Lumber Company. On the same day the articles of incorporation of the PalmerHaworth Logging Company were executed, the Gebhardt Lumber Company held a special meeting of all the stockholders and passed a resolution to reduce the capital stock from $10,000 to $3,800. Thereafter, on the same day the board of directors of the Gebhardt Lumber Company held a special meeting and by resolution undertook to declare a dividend of $3,000 out of the tangible assets of the corporation, and not having
Defendant requested the court to be permitted to amend the return on the writ of attachment in the second and third actions to conform to the facts as shown by the evidence. The court, as stated, refused to allow the amendment and defendant saved an exception. It is stated in 1 Wade on Attachment, Section 151, that:
“The same principles apply to the amendment of a sheriff’s return on a writ of attachment, that would govern in any other case of a return on mesne process. * * There seems no good reason why amendment of the return on process of attachment should not be allowed within a reasonable time after judgment, when the rights of third parties have not intervened.”
Subject to the restriction noted in the quotation, the sheriff is allowed with great liberality to amend his return so as to remedy defects therein, or make it conform to the facts where the application is made in due time. This is a common-law right, and does not depend upon statutory authority: 32 Cyc. 537; Main v. Lynch, 54 Md. 658. The return of the sheriff should always be allowed to be amended so as to conform to
In the present ease, the evidence shows that a valid attachment of the personal property involved was made under the writ. The testimony introduced does not contradict the return of the sheriff, but supplies an omission therein. No new rig’ht of third parties based upon the defective return has arisen. The claim to the property made by plaintiff is that they had obtained a right thereto before the attachment. According to its contention, no new right of the PalmerHaworth Logging Company intervened after the making of the attachment or could be based upon the defective return. The plaintiff alleges in this action that the defendant sheriff is in the possession of the personal property. "We think in justice to the defendant and the interested parties, the sheriff should be allowed to amend his return to conform to the facts proven.
The judgment of the lower court will be reversed and the cause remanded for a new trial.
Reversed and Remanded. Rehearing Denied.