65 P. 601 | Or. | 1901
delivered the opinion.
This is an action to recover possession of personal property. The defendant, who was acting as a constable, justifies the seizure and detention thereof under a writ of attachment issued out of a justice’s court. The plaintiff denies that the writ relied on was duly or regularly issued. At the trial, after plaintiff had rested, defendant, to prove the allegations of his answer, offered in evidence certified copies of the docket entries and papers in the action in which the writ was issued ; but the trial court refused to admit them in evidence, because it did not sufficiently appear that a summons had been issued at the time of the issuance of the writ. The following entries appear in the justice’s docket, prior to the entry showing the filing of the affidavit and undertaking ■ for the writ of attachment and the issuance thereof: “Summons issued September 19, 1899. Case set for hearing on the twenty-eighth day of September, 1899, at the hour of 1 o’clock in the afternoon.” The docket also shows that at the time set for the hearing the defendant in the action appeared specially by his counsel and moved to quash the summons and service thereof, basing such motion upon his affidavit, to which was annexed a copy of a summons in .foi-m as required by the act of 1893 (Laws, 1893, p. 39), dated September 19,1899, and which he avers was the only paper served upon him purporting to be a summons. No return was ever made upon the original summons, and it therefore does not appear among the files of the justice’s court. The argument is that, to support a writ of attachment issued out of a justice’s court, it must appear from the record not only that an entry was made by the justice in his docket that