Williamson v. Hurlburt

195 P. 562 | Or. | 1921

BENSON, J.

The action of the lower court in overruling the demurrer and denying the motion to vacate the injunction are the errors assigned:

The grounds of demurrer are specified as follows:

“First: That against this defendant the court, has no jurisdiction of the subject matter of this suit.

“Second: That there is a defect, or misjoinder, of parties defendant in that this defendant is not a proper party to said suit, and has no interest in the subject matter set out in plaintiff’s complaint.

“Third: That said complaint does not state facts sufficient to constitute a cause of suit against this defendant, or facts sufficient to entitle plaintiff to equitable relief.”

The first and third of these specifications involve the same question, and will be so considered.

1. The second ground, misjoinder of parties defendant, is not a ground of demurrer, and may be dismissed from further consideration: Paulson v. Portland, 16 Or. 450 (19 Pac. 450, 1 L. R. A. 673); Tieman v. Sachs, 52 Or. 560, 564 (98 Pac. 163); Wolf v. Eppenstein, 71 Or. 1 (140 Pac. 751), and other cases there cited.

2, 3. The other assignments of error appear to he based upon the theory that in no event can the aid of a court of equity be invoked to restrain an execution sale of personal property, since the remedy by way of replevin is adequate, in support of which defendant cites a number of the decisions of this court, but in none of these was the equitable power of injunction invoked in a proceeding wherein a court of equity had already acquired jurisdiction for other purposes. It is true that Section 10184, Or. L., provides for foreclosure of such a chattel mortgage by an action at law, but this court has held, in Bank of Odgen v. Davidson, 18 Or. 57 (22 Pac. 517), that under the general power of a court of equity to foreclose liens upon property equitable proceedings may still be maintained for the foreclosure of chattel mortgages. In the present case, then, the court acquired jurisdiction by virtue of the fact that the plaintiff seeks the foreclosure of his chattel mortgage. This being true, the plaintiff relies upon a well recognized doctrine of equity jurisprudence which has been very clearly expressed by Mr. Justice Ramsey in Templeton v. Bockler, 73 Or. 494 (144 Pac. 405), in which he says:

“A court of equity which has obtained jurisdiction of a controversy on any ground or for any purpose will retain, such jurisdiction for the administering of complete relief and doing entire justice with respect to the subject matter of the dispute. By virtue of this rule, a court of equity, when its jurisdiction has been invoked for any equitable purpose, will proceed to determine any other equities existing between the parties, connected with the main subject of the suit, and grant all relief necessary to an entire adjustment of such subject, provided it be authorized by the pleadings.”

4. The complaint pleads the execution and delivery of a promissory .note secured by chattel mortgage to the plaintiff, pleads a breach of the conditions of the mortgage, and alleges that the defendant sheriff has seized the automobile described in the mortgage, and has advertised a sale thereof upon execution in favor of a judgment creditor of the mortgagor. These allegations are sufficient to make this defendant a proper party to the suit. There can be no question of the priority of plaintiff’s rights as a mortgagee over those of a subsequent judgment creditor, the mortgage having been duly recorded, as alleged in the complaint.

5. Defendant also urges that the complaint is insufficient because it fails to state that the plaintiff is now the owner and holder of the note and mortgage, or that any portion of the indebtedness thereon is due or owing to him. The complaint alleges that the defendant, Adolph Johnson, for a valuable consideration, executed and delivered to plaintiff the note and mortgage therein described; that the sum of $700 and interest is still unpaid thereon. These allegations have been held sufficient in Moss v. Cully, 1 Or. 147 (62 Am. Dec. 301), and Dorothy v. Pierce, 27 Or. 373 (41 Pac. 668).

Finding no error in the record, the decree is affirmed.

Affirmed.