8 Or. 270 | Or. | 1880
By the Court,
The first assignment of error by the appellant is: That the court erred in denying the motion of Clifford Coggins, assignee of the defendants, Jason Springer and others, under the act of the legislature, entitled “ An act to secure creditors a just division of the estate of debtors who convey to assignees for the benefit of creditors,” approved October 18, 1878, * * * for leave to interplead, and to move the court to dissolve the attachment issued in said cause on the nineteenth day of November, 1878. Section 40, page 112, of the civil code, provides that “the court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy can not be had without the presence of other parties, the court shall cause them to be brought in.” Evidently this section of the code requires the issues between the original parties to an action to be determined as
So, also, the right of persons, not parties to the action, to intervene, is circumscribed within very narrow limits, being confined to cases in which a bill of interpleader would have been permitted, under the former practice, to accomplish the same end, and, under our code, can only be exercised in actions for the recovery of specific real or personal property. While admitting that there is no special provision which would authorize the intervention of the appellant in this action, his counsel claim that under section 911, p. 289, of the civil code, the court in the exercise of its jurisdiction in relation to assignment for the benefit of creditors had authority, and ought to have allowed him to interplead in behalf of the creditors whose interests he represents. That section authorizes a court to use all the means necessary to carry into effect the jurisdiction conferred upon it by law. And where the mode of proceeding is not specifically pointed out, the court may adopt any suitable means conformable to the spirit of the code to accomplish that end. We do not, however, consider that the court was called upon to allow the appellant to interplead, in order to have the attachments dissolved, because none of his rights were prejudiced by the denial of the motion for permission to interplead. As the appellant was not a party to the action, nor allowed by the court to intervene in the proceedings to dissolve the attachment, he has lost none of his rights to the property which was attached by the respondent. Section 13 of the act approved October 18, 1878, empowers him to “sue for and recover, in the name of the assignee, everything belonging or appertaining to said estate.” He can assert and maintain all his rights to the property attached, in a separate action or suit against all persons claiming it under the attachment adversely to him.
We do not say whether the assignment was valid or invalid. We have not examined it, and that question is not before us. If the assignee shall hereafter bring an action to recover the property attached, or a suit to enjoin the sale of it, that matter will then properly come before the court for adjudication, and all parties interested in the controversy can be heard.
Having taken this view of the case, it becomes unimportant to examine any other assignment of error, and the decision of the court' below is affirmed.