*1 (cid:127)492
Argued December on demurrer to alternative writ submitted reargued January April 6; 2, 1942; 26; demurrer overruled demurrer to defendant answer sustained Dobson’s May 18; peremptory issued June writ v.
STATE SCOTT DOBSON al. ex rel. et (135 (2d) 825) (2d) 794, P. 137 P. *3 Acting Chief Justice, and Rossman, Benque Belt, and Associate Justices. Ltjsk, Hay, Brand
Kelly, Prendergast, and Jr., David both Weinstein, W. J. (Leo brief) of Levenson, Portland, of Portland on the petitioner. (Platt, 'Henderson, of Portland Henderson, Wilber brief) on Cram, Portland, for defend- Warner & ant. Acting Chief Justice. The alternative
BELT, writ position alleges the official of defendant Dobson; that relator Eueidas K. Scott was and is the owner judgment against holder of a defendant Platt, and interest thereon at the $3,500, the sum rate of per per January Qy± annum cent from and for 1, 1932, duly entered in costs disbursements $31.00 Oregon the state for Multnomah circuit court of day January, county 1942; on the 8th execu- tion had been issued thereon and returned unsatis- part; day or in that on about 9th fied whole relator caused to be filed in said said March, affidavit in that said circuit court an substance relator judgment; said that execution had been issued had part paid, had that no thereof been collected thereon; and that the said relator believed that secured; property liable to execution said which he Platt apply judg- the satisfaction of said refused to toward its whereabouts to ment or disclose the officers having of execution. in their hands writ alleged in said alternative
It is also writ that said *4 judge, defendant as circuit issued an Dobson, order appear directing judge said Platt to beforé circuit said day 16th at hour March, 1942, the p. o’clock and then and answer under oath m., there concerning any property any property or interest might by that said Platt or claim, have and that said enjoined order Platt said and restrained from transferring any money, property or shares or stock possession or in his or securities under his control. paragraph allegations final set forth in said alternative writ is as follows: Monday,
“That on March 16, 1942, at the hour day, A. M. on 9:30 o’clock said said Honorable respondent Judge Alfred P. Dobson, as herein, Oregon, of the Court Circuit of the State of for the county disregarding rights of Multnomah, pursue by the Petitioner herein to the remedies provided, directing appearance law of said judgment debtor, appear Robert Treat Platt, regarding any property and under oath answer or any property may pos- he interest have in his peremptorily or his control, session under issued recalling, vacating setting aside an order said order and mentioned wherein said Rob- described judgment debtor had been Platt, ert Treat ordered appearance, make his as aforesaid, did set absolutely order aside and vacate said and has require said Platt, Robert Treat refused by Judgment per- debtor, order, to malte his appearance sonal and answer under oath as law concerning provided, any property any prgperty or interest possession that he have in his control or under his said circuit court before judge, appointed or such referee before place specified.” court, the time and to be ours.) (Italics interposed to the alternative writ
A demurrer was ground that it did not state facts sufficient to on support In the issuance of writ. warrant (1) Dobson'contends: the defendant That demurrer, *5 appealable the order of vacation is and that the relator speedy plain, adequate remedy has a and at law; (2) that mandamus will not lie to control the discretion judge of a court or as to an whether order examina- judgment (3) tion of a debtor that the court made; power during has inherent to vacate such order term time.
The demurrer admits the truth of the material writ, recitals in the alternative in viz., that, the circuit county, Multnomah court for the relator obtained a against judgment Robert Treat Platt in the sum of together $3,500, thereon; with interest that execution part issued and returned unsatisfied; no judgment paid; had been that relator believed the judgment property subject debtor had to execution; absolutely and, that defendant Dobson has refused judgment to order an examination of the debtor. pertinent parts regulating pro- of the statute ceedings supplementary to execution are: Section provides: 6-1701 L. A., O. C. issuing against
“After of an execution property, by filing plaintiff, stating or some general an behalf, one on his affidavit in plaintiff judgment terms that the believes that the property liable to debtor has refuses to execution which he apply toward the satisfaction of the judgment, judge may, such court or in its discretion, by require judgment appear order, debtor to concerning any property and answer under oath any property may or in interest that he have or judge, such court or or claim, before before a referee by appointed judge such or court, at a time and * * * : place specified in the order. L. 6-1702O. C. reference to A., Section examination judgment debtor: of the of the “On debtor, he appearance
may concerning property. be examined on oath his required by plaintiff if examination, His writing, shall be reduced to and filed with the writ, by Either the execution was issued. clerk whom party if behalf, examine witnesses his appear that the examination such any property execution, liable to debtor has court proceeding takes before whom the place, report made, of the referee is or to whom requiring shall make an order debtor judgment, apply the same satisfaction property execution, on, that such be levied *6 provided in the effect as in the manner and with likely may to effect as seem most both, this the title,
object proceeding.” this has been treated the briefs order of vacation amounting circuit to refusal of the defendant as and debtor of the an examination to order here. so considered it will be not entitled to that relator is It fundamental legal remedy he a clear of mandamus unless has duty sought right performance particular to the plain, speedy, and there is no other and enforced remedy adequate relief to available obtain the mere It is also well settled that the fact he is entitled. appealable not order of vacation is does that such necessarily preclude the issuance of the If man writ. speedy, adequate efficient, more and damus is the judicial remedy, in the exercise of sound court, notwithstanding may grant such relief discretion, appeal. right Slusher, v. 117 ex rel. Pierce said State
As was L. A. R. 114: 540, 244 P. 498, Or. prin- a fundamental “We must concede it to be
ciple that mandamus will not lie where there is a adequate remedy ordinary speedy plain, course of law: Section in the and L. However,
613 Or. such remedy, prevent must writ, the execution ‘adequate’ the rela- to afford the relief to which he even Moreover, entitled. the writ issue tor is they remedies if are not suffi- exist, where other Bailey injury: ciently speedy prevent material Corpus, ‘Mandamus’ on 830.” Habeas principle is thus stated: the same In 38 C. J. remedy another fact that there is “The mere prevent of man- issuance of the writ will remedy adequate, and is not the other if damus is an doubtful whether not there it is where ordinary remedy adequate specific of course ordinarily issue.” mandamus will law, appears that relator from the record has a It legal right performance defendant of to the clear duty sought granting particular to be enforced, viz., particularly of examination. Mandamus is order simple, inexpensive adapted affords relator a as it expeditious method of If an had been relief. vacating fixing an order the time from the order taken hearing, it and this court reversed remanded directions to re-instate the order, the cause with complete plaintiff not obtain could relief since- the *7 long hearing éxpired. appeal has since time of On this direct the court hear court lower to and would the matter at issue. Mandamus, determine however, adequate complete and afford relief. Further would appeal judge on record, this circuit more, under opportunity to show reason for have no would require and his refusal to of the order exami vacation certainly appropriate It is hot an nation the debtor. viewpoint remedy of the defendant court from adequate remedy judge. is to Neither judgment creditor. to The of mandamus is execute—not ad office judicate. merely hearing The writ commands a and by defendant as determination to whether the debtor property applied could be in satisfaction owns judgment. decision such issue is judicial function does not seek to which writ control.
That mandamus has
been considered a
heretofore
appropriate remedy
compel perform
particularly
to
duty
legal duty
some officer whose
it
ance of
was
supra;
v. Slusher,
see:
ex rel. Pierce
Ries
act,
to
State
Bailey,
(2d)
31 P.
92 A. L. R.
574,
183,
land v.
Or.
Kanzler,
ex rel. v.
Or.
The trial court had no discretion exer cise as to of examination should whether the order dispute be made. There was no as to the facts. The affidavit all creditor’s contained the aver required by § L. A. 6-1701, ments O. C. to obtain an examination he was entitled the same order of judicial could have No discretion matter of law. as a only legal one was deduction been involved when there made, viz., have relator that could been inquire entitled as to whether the debtor subject property nothing to execution. There is concerning pro in the above sections of the statute ceedings supplementary to execution to indicate that legislature intention was the vest *8 authority arbitrarily capriciously or court to or with grant to an order of refuse judgment examination when the everything required by
creditor has done him that, the statute to entitle to such order. Can it be on the in facts, could, same state court the exer- grant deny discretion, cise of its relief A and legis- B? think it was not the intention of the We proceedings lature such to authorize a court or judge arbitrary capricious in an thus to act or manner.
In 33 it is C. J. S. stated: generally judge
“It is held that the has no dis- required cretion to refuse the order where facts properly are the statute shown. He is without right impose to insist on additional facts or to other or further terms as a condition of its issuance. granted A second order will not be as of course, only judge but sound discretion aon showing by sufficient affidavit.” p. § The rule is thus stated in 35 Am. Jur. 31, 259: denying respect “The rule mandamus with judicial discretionary of a duties character is not If without limitation. the action of the court or judge calling in a matter for the exercise of discre- tion is such as amount to an abuse of discretion disregard duty, being and to manifest a thus legal power, appears without semblance and it remedy by that there no is error, or that remedy, existing, entirely inadequate, if such exigency justify is such as to the inter- position extraordinary superintending power of the higher compel court, mandamus will issue to specific have action should been taken. may compelled court or be Thus, the lower way particular act the facts to in when are not dispute wrong the court has to a con- come disregarded duty clusion therefrom, of law expressly enjoined undisputed under law question It said that facts. whether *9 scope has an tribunal acted within the of in inferior authority may generally be determined its mandamus.” judge court was vested or
If discretion ordering regard the of the debtor examination with refusal to act think there was none—the so and we an abuse thereof. was permit intended to be
It not debtor was by unnecessary annoyed or unreasonable harassed and S. C. Hence, §6-1701, 33 C. J. 658. O. examinations: “judge the or court” L. A. vested discretion prevent instances such abuse. There are numerous granting an order of examination would wherein legal discretion of the court rest within the sound judge, and are con are involved herein but none we only arising an from the issue of law cerned with . may It that the to the alternative writ. demurrer good and sufficient for has some reason defendant appear it does the order but the vacation of may be shown answer. It was not it record upon creditor to show incumbent previous application that no examination affidavit required was J. S. 671. Neither he had been made: C. might negative any defendant reason that the have require the examination. had for refusal to no merit in the We see' contention that authority to vacate the order it because court during courts term time. While have control made during the term correct or their entries over judicial modify exercise of sound dis them the present the record herein does not that situa cretion, App. v. Savin, Inc., Burdsal, Ohio tion: Sam (2d) order was Here, 22 N. E. 914. not vacated in purpose for the discretion, but the exercise of remedy legally refusing to which he was the relator entitled. of its as discretion,
This the exercise court, jurisdiction by issuing original of the cause sumed petition If for such writ had been alternative writ. ample relator then would have had time denied, appeal. that the time for in which to Now has expired, deny ill court to behooves this relator relief procedural question. on a doubtful certainly It is not the intention of the court to cast any aspersions upon the defendant circuit judgment debtor and think we there is no reason- ground for able such an inference. We are not con- party. cerned with motives either It is also *10 point judgment lawyer beside the that the debtor is a high professional standing. There is no reason why protect any bim judgment a court should other disclosing ownership property from debtor might applied judgment. be in satisfaction of a It ought apparent to be that the sole issue before the question presented by court is a of law the demurrer to the alternative writ. appeal
The mere fact that an judg from the pending deprive judgment ment is does not a creditor of right judgment his under the statute to examine the by and it debtor, is not so contended defendant. As said in 33 C. J. S. 660: * * * proceedings stayed
“The will not be appeal an because judg- has been taken from the ment.”
The demurrer to the alternative writ is overruled days and the defendant Dobson allowed ten in which Upon if answer he sees fit to do so. failure to peremptory answer, writ will issue. (dissenting). The J.,
KELL writer is unable to Y, majority opinion of the for the reason concur opinion, party right appeal, has a in his where that, extraordinary may not had to the writ of resort and in the instant case it is mandamus; conceded right appeal exists. that prevailing opinion suggestion The contains the appeal judge trial that in cases of an could not any vacating indicate in the record reason for and that suit, order answer the alternative opportunity have an to do writ, so; he will therefore judge, appeal the trial defendant, is not an as to appropriate remedy. prevailing opinion also states appeal creditor an as to the an that remedy. adequate opinion is of the the trial
The writer authority, power duty and that full it is his has by making protect his record it conform to the appeal also thinks that an The writer truth. from adequate remedy judg- in suit is an as order to the resulting If creditor. been taken, ment order of the trial reversal of the court, in a effect the rendition without thereof, even written restoring opinion, pen- have resulted would petition requiring dency for an order of relator’s appear examination, debtor accom- panied that such an order had been unjustifiably improperly vacated. The writer *11 confronting a record such that with no him, thinks Oregon fail to issue an would order for trial examination immediate debtor. the reversal, of a this in ease court Moreover, could impropriety, pro- charged irrelevance with not be be made in lixity, should the statement if the court’s
505 opinion written that an examination of the only debtor should be for that another ordered; way saying vacation an order of such con- stituted reversible error. question
In a York in 1888, New case decided appeal decided on is in substance the same as one which the relator herein seeks have decided in proceeding Dorsey Cummings, this in mandamus. v. (48 Hun) 55 N. Y. 76. question, procedural
The writer thinks that namely, “Does mandamus lie in a case where relief sought may by appeal?” be obtained is not doubt- many nega- times has ful; but, been answered by by Supreme tive this court Court of the United overwhelming weight authority States, and prosecute elsewhere. That relator did not this man- proceeding diligence damus with such as to have it appeal determined before the time for him to expired, opinion should not, the writer, blind grounded and deafen this court to such a well generally approved principle procedural law, as compelled negative that which has often so answer question to the above set forth. plain, speedy adequate remedy
Where
not
exists, mandamus does
lie. In re Von Klein,
67
P.
In
298, 135
870;
Clark,
Or.
re
79 Or. 325, 332, 154
Beveridge,
P.
P.
748,155
ex rel.
187, 189;State
v.
112 Or.
P.
19, 23,
100;
228
State ex rel. v.
Court,
Circuit
114 Or.
P.
P.
6,
563,
262;
234
ex rel.
State
v. Norton, 131 Or.
12.
P.
382, 292, party
“It
is well settled that where a
has the
right
appeal,
to a
of error
writ
resort
extraordinary
had to the
writ of mandamus or
Tiffany,
prohibition.” In re
506 Sup. Rep. 252, L. Ed. 324, 55 31 Ct. 363, 219 U. S. (N. S.) parte 220 Oklahoma, Ex 392; L. R. A. 37 U. S. Sup. Ed. 55 L. 431. 426, 31 Ct. 191, ‘‘ mandamus, a of office of writ The accustomed compel judicial an is to officer, a directed to
when jurisdiction, existing not to control but exercise compel a lie to reversal It does not his decision. interlocutory made final, decision, of a either especially jurisdiction, in where exercise of a lawful regular re decision be course' the appeal.” Ex upon an a of error writ viewed S. Ct. parte 1217, L. Ed. 34 Roe, 70, 58 234 U. S. many citing authorities. 722, position support mandamus that relator’s In inadequate remedy and at law lie will where delay, rel. case of ex relator cites the State much entails R. 58 A. L. 244 P. 498, 540, 117 Slasher, v. Or. Pierce compel to the sheriff instituted That case was 114. proceed capacity to collect to as tax collector in his upon public his official bond An action revenue. that the might there held It is maintained. have been proceed compel to collect right to a tax collector requirement upon public public revenue rests remedy action speedy that an and certain not meet would against his bond defendant at In the case for revenue. commonwealth need appeal as any, same on if would relief, bar, sought in mandamus. is here that which Bailey, P. 2d 92 574, 183, 31 146 Or. In Riesland v. appro- is the that mandamus held L. R. it is 1207, A. approve compel an remedy under- clerk to priate question the existence of taking appeal. on approve of the clerk right refusal from the Riesland-Bailey suggested. case, In the bond is such App. 19 P. 2d Superior 635, 129 Cal. Lyders Court, v. P. 837, Ariz. 322, 413, 37 Fichett, v. 300; 294. Gotthelf Ind. N. E. State, 36, v. are Coates supra, Lyders Superior In v. Court, cited. is held ruling appealable under attack was not an ruling refusing order. That consisted of the trial court approve undertaking theretofore tendered as stay appeal. bond on Neither in the case Gotthelf *13 supra, nor in Fickett, State, v. the case v. Coates question supra, presented is the as to or whether not appealable. the order under attack was remedy by In relator’s it is brief, conceded that a appeal possible, from the order under attack is but it argued appeal is that an under the circumstances would speedy adequate remedy. a not be In that connec- delay it is there said that the tion, incidental to the ordinary appeal from such an order would and does permit judgment squander debtor to his assets. The record the case at bar discloses that the issuance of an alternative herein writ was ordered on the 3rd day April, during 1942. It is obvious that the time elapsed appeal has then an which since could have been put perfected, presented at issue and to the court. by by appeal is relator It said that, time the perfected, judgment parts debtor could leave for remedy namely, unknown. The here invoked, manda- has afforded the mus, debtor the same opportunity. orally argued by by requiring
It was relator that right appeal seeldng relator to invoke the instead of by redress we mandamus, accord to the opportunity quo debtor the to maintain the status during pendency appeal of his from the principal being required case without file supersedeas proceeding This bond. mandamus has had the same effect. plain employ
To the it is that to the extra- writer, ordinary determining writ of mandamus in the issue presented legal remedy supersede here is to thereby affording without relator more adequate speedy relief. issuing
The that in thinks, writer the alternative court writ, the did not make the selection as to remedy the relator chose to invoke. That selection was by presented petition made the relator when he for By issuing the issuance of an alternative writ. such merely parties this court consented writ, to hear the questions pertinent all with reference to to the issue joined including question thereafter to be of the remedy propriety of the thus invoked the relator. prevailing opinion attributes to the trial court making motive the order of vacation which, opinion writer, reflected the record. On contrary, applying presumption that official duty regularly performed, has been we must conclude *14 that the order of vacation was entered in the exercise purpose refusing of discretion and not for the right legally accord to the relator a to which he was probative In as in other mandamus, entitled. cases, alleged modifying unsup- must be facts words, by allegations ported surplusage. fact, are mere authority applica There is to the effect that in an requiring judgment appear tion for an order debtor to necessary allege is examination, it not that no previous application an for such order has been made; application but has been held that for an alter applicant negative of mandamus the native writ must any under statute or facts which ordinance relied might right upon him defeat his to maintain the p. Encv. of Plead. & 13, Pract., action. Vol. 679. There,
509 the Ohio case State ex rel. v. 4 Bickham, Ohio Cir. Rep. quote
Ct.
246,
cited. The writer ventures to
opinion
from the
in that case:
“* * * majority
opinion
of the court are of the
peremptory
that the
writ should not issue for the
granted
further
unless the
reason, that the
will
writ
petition alleges
facts sufficient to show
against
prayed,
that the officer
whom the
iswrit
duty.
has
omitted manifest
It must contain not
only
allegations
proceedings
the affirmative
necessary
party
process prayed
to entitle the
to the
for, but it must also be averred that other facts
justify
complained
would
the omission
of,
do not exist.
ex rel v. provides though The statute writ man may require person damus a court, officer or to exer judgment, judicial cise its or his it shall not control p. discretion. Section L. 11-302,O. C. A., Vol 330. To meet this basic limitation the function of argues the relator writ, such that there was an abuse of judicial proceeding. discretion in the instant
Applying to the alternative in writ suit the rule that petitioner negative for writ of mandamus must right would defeat facts which his to maintain the by alleging probative merely action facts instead of em- modifying nothing ploying terms, we find therein which *15 assumption prevents natural the that after entertain- ing petition granting requiring and an the order the appear judgment debtor the defend- examination, Judge advised himself of state of the Dobson, the ant, judgment resulting in the the which was basis record supplemental proceeding. probative There no for the is challenges writ in alternative which dis- fact the presumption Judge putes Dobson formed the the opinion from state of the record that said the From record, the he became aware that
was voidable. appeal taken therefrom. Moreover, an had been can- a assumed that the debtor is not man not be standing probity. His before courts attests his integrity. professional high personal whether and one,
No subjected standing not, should examination supplemental proceeding to an execution a pending an is while there- voidable from. entirely point opinion that in the is beside
It judgment, which entered the or even in court, trial Judge opinion Dobson was mistaken. court, of this judicial that he his to the writer exercised It is obvious only prompted good concep- faith his discretion years duty many legal supported and tion of putting study, training In an and attainment. end to supplemental proceeding that he failed execution, writing provision distinguish in the between judgment creditor’s evidence of his constitutes restricting principal as one case action chose security against provision procedure and remedy security restricting limiting where the taken into consideration, not to be does is waived guilty justify the conclusion that he was in the least discretion. abuse of
511 nearly every The writer and one else, who has judicial position in a served for an extended interval, adjudicated mistakenly rights have litigants; (cid:127) certainly, ought but, not to mandamus be held the approved procedure by adjudications which such should be corrected. respect
For these majority reasons, with due for the with whom he opin- differs, writer dissents. In his ion, the demurrer to the alternative writ should be proceeding sustained and the dismissed. (dissenting).
ROSSMAN, J., The fact that the is through Judge circuit court, the medium of Dobson, upon acted requiring the relator’s motion for an order undergo Platt, concerning debtor, an examination ability discharge judg-
his the relator’s ment. The motion was allowed order was entered required undergo the debtor to examination. Later, some reason which the record does not dis- close, order new was entered which vacated one just mentioned. The later order was entered March 16, proceeding 1942. It is that order with which this is Although majority concerned. hold that an yet could have been taken from that order, for all other purposes they virtually ignore it. apparent present proceeding
It must be that the is upon an attack the order of March 16, which held that creditor was not entitled to examine concerning ability satisfy Platt his the debt. If respect is order entitled to I am sure that —and proceeding it is—this cannot succeed; in this fact, proceeding cannot succeed unless the order of March 16 is void. City Portland, v. 583, 163 P. 1159,
Schmid Or. proceeding now before us, was based like seeking petition in this court filed issuance of a peremptory of mandamus. writ The decision was Speaking Mr. Justice for the en written Harris. tire he said: court, being city
“The attack now made collateral assault on the rendered Cye. p. E. 15 C. Circuit Court: 1064, 1346; L., # [*] [*] *17 pause direct attention to
I the fact that the words quoted upon judgment, just hold an attack that made proceedings, in the course mandamus is deemed support Eeeent texts which one. the Schmid collateral Judgments, holding §§ 5th 311 ed., are: Freeman on Judgments, § Am. 34 ed., Black on 2d 399; 985d; Judgments, p. § Am. Jur. Mandamus, 951, 177; Jur., Judgments, p. § § p. 522, 828, J., and C. 207, 617; § 523, 829. p. present apparent that from above
It is Judge upon proceeding a collateral attack is mandamus of March 16. order Dobson’s made the statement Harris After Mr. Justice just quoted, he continued: may judgment is void on its be face “A which judgment party
collaterally to a but attacked; collaterally impeach it for errors of law cannot practice no than irregularities do more or ’’ merely or voidable. erroneous it to render point a wealth of Mr. Justice that At Harris.cited He authority supporting then continued his statement. as Black on 2d Judgments, ed., 246, from § by quoting follows: is on its face it is of
“If void and of no avail for any pur- course a mere nullity and this be it whenever pose, it is may urged against otherwise, But whether
brought question. correct irregular, erroneous, or valid regular voidable, subject it is not to collateral attack.” of the decision those prin- Later paragraphs applied before the from these court; to the ciples controversy is taken: the following then the merely
“If voidable made must fail. city attack now collateral The court had and of jurisdiction parties ’’ matter. subject The decision held that the impervious attack it. to the collateral city’s upon is a collateral attack already said, present As certainly March That order 16,1942. the order of averment its face. made only is not void upon the order impeach relator which is intended Dobson acted when Judge “peremptorily” states that mean, word it cer- it. Whatever he entered the attacked order is void. not show that tainly does *18 that, to since the record seem believe majority The before this court brought creditor which the judgment Dobson entered his order why Judge fails to disclose believe that he acted are compelled we of March or reason. Before warrant is, that without arbitrarily; that 2-407, O.C.L.A., ourselves § us remind let going on, the duty presume, all courts upon imposes circumstances, contravening absence has been regularly duty That official “(15) performed; “(16) judge acting That a court, such, as whether in country, this state or other state or acting jurisdiction; in the lawful exercise of his “ (17) judicial That a record, when not conclu- correctly sive, does still determine or set forth the
rights parties;” of the nothing There is pre before us to show that those sumptions present are not warranted in the instance: contrary, to the they the record demands that be drawn. Certainly, party naught judg who desires to set at ought allege negative ment at sup least to facts which porting presumptions. only step taken in that judgment direction creditor is the one which we already quoted; have Judge is, her averment that “peremptorily” Dobson acted when he entered the “peremptorily” order March 16. But the word nothing expression more than the of a conclusion of Judge law. There is no averment that when Dobson entered order under attack there was before him only sup the motion for Platt’s examination and the porting affidavit. far So as the record before is us concerned, other documents and facts have been Judge before Dobson which left him alternative no except litigant to enter the order of March 16. A who impeach desires cannot throw alleging the burden of creditor facts which support judgment. contrary, To he must him impeaching self all This, set forth circumstances. being +he the relator in this man creditor, proceeding, damus not done. Because it has has impeachment been must fail and the demurrer done, the petition ought be sustained to the I dissent. *19 May 18, 1943 sustained
Demurrer to defendant Dobson’s answer On Demurrer to Answer (2d) 825)
(137 P. original opinion In the in this mandamus BELT, J. proceeding v. demurrer ex. rel. Scott Dobson—a —State to the alternative was overruled and the defendant writ permitted showing an answer circuit was file good he had “some and sufficient reason for whether vacating directing of the order” the examination of Robert Treat Platt. debtor, has filed and the The answer been demurrer thereto question presents legal as to whether there is refusing justification for to order the examination. In admitted that the the answer referred against Mr. the writ was obtained Platt and had been issued and returned that execution unsatis- part. fied in or in whole alleges: an affirmative the defendant answer,
As I. immediately prior day
“That to the 9th certain March, 1942, K. Scott is that action wherein Eueidas plaintiff, and Robert Treat Platt Registry Harrison G. Platt are defendants, Clerk’s No. 140-942 in the Circuit Court of the State of Oregon county plaintiff for the of Multnomah, the caused to be issued and served the United Corporation States National and The United States (Oregon), National Bank of Portland writs of garnishment execution and notices of wherein and whereby property, any, belonging if de- fendant, Robert Treat Platt and in possession garnishees subject garnishment; said day thereafter and before the 9th of March, 1942 garnishees respective said said notices of filed their returns on garnishment. II.
‘‘ day plaintiff That 9th 1942the on the March, *20 preceding paragraph in in the action referred to the garnish- of execution and notice of caused writ upon ment to he served Platt, the various members of copartnership, Henderson, Cram, Warner & whereby upon levy plaintiff sought in action the said property, any, belonging if to said Robert possession copartnership. of said Treat Platt in the
III. day plaintiff 9th of March, That on the paragraph hereof, in I in action referred to presided through his counsel moved the court over requiring ap- for an order defendant, pearance for examination of Robert Treat Platt supplemental that at said time de- execution; garnish- not informed of the fendant herein was ment and proceedings or of the nature of directing signed said Robert Treat an order day appear 16th examined on the and be Platt in hour of two o’clock 1942 at the March, day. said afternoon of
IV. day March, on the 11th thereafter and “That a motion to Platt filed vacate Robert Treat paragraph; preceding in the referred to the order that the motion of said was that the basis upon predicated action for four bonds part totalling that such bonds were $3500.00 aggregate then of which there $175,000.00 issue of an approximately outstanding $143,800.00 were appealed Treat Platt said Robert and that the good faith and it was further from said or mort- that the trust deed motion in said set out part supporting gage read as follows: bond said coupon any or secured bond holder ‘No any right hereby suit, to institute have shall equity proceeding at law or either action or or instrument, for of this foreclosure for the any power hereunder, execution of trust appointment to take of a receiver or for the hereby, properties possession embraced remedy un- whatsoever, other * * (cid:127)’ less V.
‘‘ day March, on the 16th That thereafter and aforesaid ’clockA. M. the hour of 9:30 o 1942 at the during argu- hearing; on for motion came ment on the developed that in addition motion it foregoing given motion as reasons to the garnishments heretofore re- notice of filed, had been made returns thereof ferred to and the plaintiff appeared that in the afore- further and it said action subpoenas duces tecum to had caused of The Dick, President Paul S. be served United (Oregon) Portland National Bank of States *21 Buckingham, Har- Henderson, Wilber and Caroline requiring each Cram, Edward T. and Warner, old J. papers appear parties books, with certain of said in hour of o’clock the at the two documents and or at the time fixed March afternoon of supplemental hearing orders afore- on the for the appeared this device was that further it said; statutory proceeding for of the in lieu resorted to by garnishees examining of the returns into interrogatories. allegations and VI. hearing upon de- of said motion the
“That in had court term time that a assumed fendant the authority it that vacate order same originally; that Sec. to make had have would applica- upon provides that the L. A. O. C. 6-1701 supplemental the to execution order for an tion require may judge the discretion in its or court appear under oath and answer judgment concerning debtor any prop- any property interest time defendant at that erty that have; he power Legislature to fix had full that the assumed upon any statutory order the conditions might dignity made the force and as of same provision the for the order itself and said since statutory provision specifically reposes in the issue order the discretion to or withhold said considering that and not at time the issuance right plaintiff of a matter such order was of the subject right all the but a the plaintiff at times to discretion appearing and it to the court that court, the subpoena order in said action the and upon to be tecum which he caused served duces the
garnishees procedure resorted to such named, taldng statutory provided proceedings to avoid litigants garnish- returns on dissatisfied with by allegations interrogatories, that is and ments, believing original im- order was and otherwise providently improperly and issued under the cir- believing further as to that there was cumstances, and validity reasonable doubt statutory acting solely upon the action, said authority in the court and the discretion vested otherwise, L. A. defendant Sec. 6-1701O. C. whereby March 9th order of Robert vacated the appear directed to on Platt had been Treat 16th supple- day 1942 for examination March, ’’ execution. mental to from the above answer de It is observed justify prin the vacation of the order fendant seeks ground ordering cipally that, the time at judgment debtor, of the he was examination “not proceedings garnishment the nature informed of specific judgment.” is no direct and There garnishees, but to the return we averment as *22 pleading think from the a fair inference that is satisfactory plaintiff, and that were not returns the “allega following statutory procedure of the instead of interrogatories” to the reference returns tion proceedings garnishees, of the “device” resorted to of supplementary in'fact, to execution. the If, return satisfactory, property been i. there sufficient e., was garnishees satisfy possession of the debtor in of the to judgment, necessity the there would be no to vex or annoy judgment requiring him the debtor to submit garnishees having to examination. If the had admitted property possession belonging judgment to the their satisfy judgment, debtor sufficient to the there would pleading no occasion the However, for this lawsuit. present affirmatively for it does not such situation garnishment proceedings appears the therefrom that remedy. inadequate the is case wherein were It says inquiry concerning ownership defendant any property judgment of of the debtor should be person against persons to and not to the directed third judgment That has been obtained. whom judgment property of the show no funds returns garnishees certainly does in the hands of the debtor inquiring preclude creditor from not ownership property. his debtor himself about say legal has no discretion The circuit abuse has been no there creditor —where inquiry your third process must direct —“You person persons, debt.” owes who but not to allegations is in reference the bond The against the de of a the basis sue which proceeding. in this not material Platt are fendant proceedings to execution is to supplementary purpose property judgment debtor owns whether ascertain judgment. It applied of the in satisfaction can be pro validity judgment. In such test the not to original ceedings action are the issues subject inquiry. Fiero Par- on proper As said *23 520 Article Actions and Proceedings (4th Ed.)
tieular VI 3296: (E), p.
“* * * can- the judgment The regularity Nor can in these proceedings. not be questioned If the execution be validity questioned. of the raised must be voidable, question execution is * * *” for that purpose. direct proceeding Am. Jur. Execu- effect, the same see Also, to Manual of Pro- Supplementary §674; tions Wait’s Article Executions, III, 1,§ and Garnishee ceedings judgment here that There no contention 310. is p. jurisdiction. is for lack of void for vacation is it any ground Neither from the to this court was pending that an appeal order 681, Executions Suffice §368. J. S. C. judgment: Platt, v. Scott (see a valid judgment it to it was say and did issue. There could execution supra, upon were order. proceedings fore, supplementary the other for vaca- grounds The law applicable is discussed in the answer tion referred demurrer to the alternative writ. on original opinion of repetition. see no need We before us a wherein have case Summarizing, we against has been obtained that a admitted is execution has been issued and that Treat Platt Eobert showing There is no unsatisfied. returned debtor has not been The judgment of process. abuse unnecessary frequent harassed annoyed which execution The judgment examinations. in the garnishment The returns valid. issued no and afforded unsatisfactory were proceedings creditor. The plead the judgment remedy adequate creditor with a compliance show ings relative to supplementary statutory provisions proceedings. any legal to disclose answer fails justification requiring for the vacation of the order examination of the debtor. think the We plaintiff was entitled as a matter of to the law relief sought legal and that no exercise of discretion was involved in the vacation of the order.
It follows that the demurrer to the answer is sus- peremptory tained and writ will issue. J., dissents.
Kelly,