68 P. 739 | Or. | 1902
delivered the opinion.
This is the third appeal, and the question now presented is raised by a motion to set aside a sale of attached property on execution, and to vacate the judgment directing the sale, and has relation to the sufficiency and validity of the attachment. A view in the retrospect will not be amiss, in arriving at a clear understanding of the situation. Shortly after the filing
The return of the sheriff on the writ of attachment, so far as it is involved in this controversy, is as follows:
“I further certify that I further executed the within writ of attachment on the 16th day of April, 1894, at the hour of 3 o’clock p. m. of said day, by attaching all of the right, title, and interest of the within-named defendant in and to the following described real property situated in the City of Portland, County of Multnomah, State of Oregon, to wit: ‘Beginning at a point at the intersection of the north side of Park Avenue with the east side line of Ford Street, running thence northerly along the east side line of said Ford Street to its intersection with the south side line of Washington Street; thence easterly along the south side line of Washington Street to its intersection with the west side line of St. Claire Street; thence southerly along the west side line of St. Claire Street to its intersection with the north side line of Park Avenue; thence westerly along north side line of Park Avenue to place of beginning; all of said property lying and being in the City of Portland, MultnQmah County, State of Oregon,’ — by leaving with and delivering a copy of said writ of attachment, prepared and certified to by me as sheriff, to a Chinaman, the sole occupant thereon and thereof, whose name to me is unknown, and by filing with Henry E. Reed, Clerk of the Circuit Court of the State of Oregon for the County of Multnomah, certificates of said attachment.”
Another parcel of realty was attached under the same writ, and at the same time, about the validity of which no question is made, and has been sold and the proceeds applied towards the satisfaction of plaintiff’s demand. The following portion of the ábove-described realty was, on August 4, 1899, sold by the sheriff under execution to satisfy the balance due upon plaintiff’s judgment, and bid in by him, to wit:
“Beginning at a point in the west line of St. Claire Street, which point is 200 feet distant, measured in a northerly direction along the west line of St. Claire Street, from the point where the west line of St. Claire Street intersects the north line of Park Avenue, and running thence in a westerly direction on a line parallel with the north line of Park Avenue 300*328 feet, more or less, to the east line of Ford Street; thence northerly along the east line of Ford Street to a point where the east line of Ford Street intersects the south line of Wayne Street extended westerly; thence easterly on the south line of Wayne Street extended westerly to the point where the south line of Wayne Street extended westerly intersects the east line of St. Claire Street; thence southerly along the west line of St. Claire Street to the place of beginning. ’ ’
When this sale came on for confirmation the defendant objected thereto, and moved the court to set it aside, and also “to set aside, vacate, and hold for naught so much of the judgment and order of sale herein as provided for the sale ’ ’ of the whole of said tract, as shown by the return of the sheriff on the writ of attachment, and particularly of the tract sold under execution and bid in by plaintiff, and to set aside the attachment’ claimed to exist upon said realty,, including the tract sold under execution, “for the reason that said attachment is not valid, * * and the court had no power to make any order of sale thereof.”
The motion is based upon affidavits of-the defendant and others, the defendant having been substituted for Cordelia Johnson while the case was last here on appeal. By these it is averred, among other things, that the property attached embraces and includes five distinct parcels of land, namely: One parcel embracing the property sold under execution; one embracing all of the attached property lying, adjoining, and north of the property sold; one consisting of 100 feet fronting on St. Claire Street, and extending westerly through to Ford Street, adjoining the parcel sold on the south; one consisting of the west half of the 100 feet next south, being the south 100 feet of the property attempted to be levied upon; and the other consisting of the east half thereof; that one Bickel was the owner of the said west half at the time of the levy, had a dwelling thereon, and occupied the same with his family; that the said east half was owned by one Warren, but unoccupied. The tract lying to the north of the premises sold stood in the name of William M. Ladd, as trustee for Johnson, to dispose of and apply the proceeds in payment of Johnson’s
The contention is that the judgment directing the sale of the real property so attached, including the property sold under execution, is void, for want of jurisdiction of the court, and is based upon the alleged invalidity of the attachment, which, it is urged, arises from an insufficient service of the writ in two particulars, namely, a copy thereof was not left with the occupant, and the attempted attachment was upon several distinct pareéis of realty, including therewith property of third parties. It is maintained (1) that the validity appears upon the face of the return of the sheriff; and (2) that, if it does not so appear, it has been shown by affidavits aliunde, and that it is competent in a case of this kind to contradict such return and show that the facts are different from those stated therein. Plaintiff makes the point that these questions cannot be considered upon objections to the confirmation of the sale, and such objections can only extend to substantial irregularities in the proceedings concerning the sale, to the defendant’s probable loss and injury: Hill’s Ann. Laws, § 296, subd. 2, and Krutz v. Batts, 18 Wash. 460 ( 51 Pac. 1054). The defendant seeks to evade this point, however, and insists that his motion is-to set aside and vacate the judgment as it relates to the property in dispute, as well as to set aside the sale. Of course a vaca
Now, in the case at bar plaintiff, by his motion for a continuance against Cordelia Johnson, executrix, set forth by affidavit the facts attending the attachment. These are the same as returned by the sheriff, it is true, but the matter was
There being no other objections urged against the confirmation, the order of the trial court will be reversed, and the cause remanded with directions to confirm the sale on execution, and it is so ordered. Reversed.
Hill’s Ann. Laws, § 149, subd. 3.