Sabin v. Michell

Opinion by Mr. Chief Justice Bean. 1. It is contended for defendants that the allegation — 70 — that Michell and Shurtleff were partners is not sustained by the evidence, but we regard this question as immaterial. The complaint charges a joint and several liability, and it is admitted, as well as alleged, by defendants that the stock of goods in controversy belonged to Michell, and the debt upon which plaintiff’s attachment is based is against him; so that if plaintiff has a cause of action against Michell, it is wholly immaterial, so far as defendants are concerned, whether Shurtleff was liable with him as a partner or not. If the evidence failed to sustain the allegation of partnership, plaintiff was still entitled to a judgment against Michell, and his property, having been seized on attachment, was liable to sale to satisfy such judgment: Fish v. Henarie, 14 Or. 29 (13 Pac. 193); Faust v. Goodnow, 4 Colo. App. 352 (36 Pac. 71); Simpson v. Schulte, 21 Mo. App. 639; Miles v. Wann, 27 Minn. 56 (6 N.W. 417); Congdon v. Monroe, 51 Texas, 109. 2. It is also claimed that there is a fatal variance between the allegation and proof of the assignment to plaintiff of the accounts upon which this action is based. The complaint alleges that on the twenty-eighth day of November, eighteen hundred and ninety-two, John S. Michell and W. T. Shurtleff, doing business under the firm name of John S. Michell, were indebted to certain wholesale firms in Portland, and that said firms sold, transferred, and assigned their respective accounts to this plaintiff, who ever since has been and now is the owner of the same. To prove the assignment plaintiff offered in evidence a written instrument entitled “In the matter of J. S. Michell, Falls City, Oregon,” which recites that the subscribers thereto sell, assign, and set over and transfer to R. L. Sabin their claims against said Michell. The contention for the defendants is that this instrument only tends to prove the assignment of demands against J. S. Michell individually, and not against Michell and Shurtleff as — 71 — partners; but the evidence shows that the intention was to assign to the plaintiff the accounts and demands of the assignors against the concern doing business at Falls City under the name of J. S. Michell, whether it was an individual or partnership, and the written assignment, it seems to us, was sufficient to vest the title of such accounts and demands in the plaintiff, and sustained the allegation of ownership in him, whether J. S. Michell was an individual or a partnership. The material and necessary issue for plaintiff to prove, in order to recover, was the ownership of the accounts sued on, and this was met by the written assignment. The allegation in the complaint that the accounts were due plaintiff’s assignors from a partnership doing business under the name of J. S. Michell may very properly be held as immaterial in this suit. The case of Thompson v. Rathbun, 18 Or. 202 (22 Pac. 887), cited by defendants, was an action on a promissory note alleged to have been executed and delivered to the Portland Savings Bank, which allegation, the court said, meant á note that was made payable to the Portland Savings Bank by name, or some equivalent expression by which the bank could be clearly identified as payee; and because the note offered in evidence was not of that character it was held inadmissible. This was an entire failure of proof on a material allegation of the complaint; but in the case at bar the material allegation is proven by the evidence offered, and the failure, if any, is on an immaterial issue. 3. It is next contended that neither Leavitt nor Daly was in possession of the store at the time the garnishee process was served upon them. Both the referee and the court below found to the contrary, and we think this finding is fully sustained by the testimony. The evidence shows that Michell was out of the state, and that Shurtleff, who was in possession of the store, fearing an attachment, and desiring to prefer certain creditors, a short — 72 — time before tbe sheriff arrived at Falls City for the purpose of serving the plaintiff’s attachment, under the advice of Daly conveyed the stock of goods to Leavitt by bill of sale, in trust for such favored creditors, without their knowledge or assent, and subject to their approval, and immediately closed the store and delivered possession of the keys to Leavitt and Daly, who were present and claiming, with the consent and acquiescence of Shurtleff, to be in possession when the sheriff and plaintiff’s attorney arrived at Falls City, and who ordered the sheriff, under threats of prosecution for trespass, not to attempt to take possession of the goods, nor force an entrance into the building. Under such circumstances the sheriff was, we think, justified in attaching the property by serving garnishee process upon Leavitt and Daly, and the right of plaintiff thus acquired cannot now be defeated by these defendants, although their possession may have been solely for the purpose of preventing the seizure of the property by plaintiff under his attachment, and thus favoring the other creditors, among whom are these defendants. 4. And finally it is contended that the sheriff’s return on the plaintiff’s writ of attachment is so defective as to render the attachment nugatory, as against the defendants who are subsequent attaching creditors with notice. The sheriff, after certifying in his return to the manner in which he attached certain real property, states that he served a true copy of the writ, duly certified to by him, upon Willis Leavitt in person, together with “notice to garnishee,” and a like copy and notice upon Daly, and that the answer of each of said parties is attached to and marked respectively exhibits “A” and “C,” and made a part of the return. The exhibits referred to and made a part of the return, and upon which Leavitt’s and Daly’s answers are indorsed, are copies of the writ, having — 73 — thereon a notice to the effect that all moneys, goods, credits, and effects or any other personal property in the possession or under the control of said parties belonging to the defendants or either of them, are attached by virtue of the writ. It thus appears that the sheriff not only certifies that he served a copy of the writ and notice of garnishment upon Leavitt and Daly, but he attaches to and makes a part of his return copies of the papers so served, from which it appears that he complied with the statute by leaving a copy of the writ, and a sufficient notice specifying the property attached, (O’Brien v. Mechanics’ Insurance Company, 56 N. Y. 52,) with the persons who were in possession of the same, and hence the return, in our opinion, shows a sufficient compliance with the law to preserve plaintiff’s lien, as against the defendants whose attachments were issued and served with notice of the service of plaintiff’s writ. It is true the officer does not certify that he attached certain described property by leaving a copy of the writ, together with a notice specifying such property, with Leavitt and Daly, and that they were in possession of the same, and in this respect the return may be defective; but he does show that he substantially complied with the law providing the manner in which personal property in possession of a third person may be attached, and this is sufficient to preserve the lien as against subsequent attaching. creditors with notice, which is the only question for our determination at this time. In such cases the courts are not critical as to the language used by the officer in making his return, and it is sufficient if it can be fairly inferred therefrom that he has met the requirements of the law, and to this end it should receive every reasonable intendment and presumption: Murfree on Sheriffs, § 864; Drake on Attachments, § 204; Wade on Attachments, § 149; Ritter v. Seannel, — 74 — 11 Cal. 238 (70 Am. Dec. 775); Governor v. Gibson, 14 Ala. 331; Stoddart v. McMahan, 35 Texas, 268; Newton v. Adams, 4 Vt. 437; Rowan v. Lamb, 4 G. Greene, 468. We conclude, therefore, that plaintiff’s lien upon the property in controversy is prior in point of time and in right to that of the defendants, and that the decree of the court below was correct. Affirmed.