Palmer-Haworth Logging Co. v. Henderson

BEAN, J. 1-3. Counsel for plaintiff contend that the return of the sheriff upon the second writ of attachment in the action of Everding £ Farrell v. Gebhardt Lumber Company was insufficient to justify the sheriff, in that the return did nót show the manner of making the attachment, or that the sheriff took the property into his possession. Defendant requested the court to be permitted to amend the return to conform to the facts. This application was refused, as we understand the record, for the reason that it was held that the plaintiff’s claim had intervened. Plaintiff’s counsel also maintained that the facts pertaining to the levy do not warrant the amendment of the return of the sheriff, or show a valid levy. At the time of the execution of the first writ of attachment on April 14,1915, the sheriff proceeded with the writ to the lumber-mill and plant of the attachment defendant Gebhardt Lumber Company. Mr. G„ D. Palmer, secretary and manager of the Gebhardt Lumber Company, was there and was informed by the sheriff that he was about to attach the property of that company. Mr. Palmer pointed out one of the donkey-engines in question in this action and informed the sheriff where the other donkey-engine was in the woods, and furnished the sheriff with a complete list of all the personal property of that company, and the same was taken possession of by the sheriff as Ms re — 196 — turn upon the writ in that case shows. It is shown by the evidence that at the time of making the first attachment, the sheriff placed all of the property in charge of one of his deputies Mr. P. A. Flynn, who receipted to the sheriff therefor. The mill was shut down and the business suspended. The receiptor remained in charge and control of the property attached until the trial of this cause. It will be noticed that the first attachment had not been released and the property had not been turned over to anyone by the sheriff or his receiptor when the second attachment was made. Therefore, it was unnecessary for the sheriff in making the second levy under the subsequent writ to do any affirmative or overt act in order to divest the defendant G-ebhardt Lumber Company of the possession of the personal property for the reason that the sheriff then held the possession of such personal property: 4 Cyc. 604; O’Connor v. Blake, 29 Cal. 312; Naumburg v. Hyatt, 24 Fed. 898; Tomlinson v. Collins, 20 Conn. 364; German Sav. Bank v. Capital City Oatmeal Co., 108 Iowa, 380 (79 N. W. 270); Turner v. Austin, 16 Mass. 180, 181; State v. Curran, 45 Mo. App. 142; Whitney v. Farwell, 10 N. H. 9; Wehle v. Conner, 83 N. Y. 231; Bell v. Shafer, 58 Wis. 223 (16 N. W. 628); Waples on Attachment, p. 177; Drake on Attachment (7 ed.), § 267. A bailee to whom attached property is intrusted by the sheriff is the agent, of that officer for keeping it. It is still in the constructive possession of the court, still legally in the hands of the sheriff, by the bailee holding under him as his representative or agent: Waples on Attachment, p. 284; 4 Cyc. 663. The possession .of P. A. Flynn, the sheriff’s deputy and receiptor of the personal property attached in the first action, was the possession of the sheriff at the — 197 — time of the issuance of the second writ of attachment. The sheriff forwarded the second writ of attachment and other papers to his deputy and made his return that the personal property in question and other property was attached. The possession of the personal property then being in the sheriff’s hands, this would have been sufficient if the return of the sheriff had shown that he took or then held the possession of the personal property: O’Connor v. Blake, 29 Cal. 312. The next question is: “Should the claim of plaintiff to the property involved prevent the amendment to the sheriff’s return so as to conform with the facts?” In the absence of statutes expressly authorizing defects in form in the return of a writ of attachment, as a general rule the courts have allowed an amendment of the return to conform to the facts where intermediate rights have not been acquired by third parties: 4 Cyc. 552. In the case at bar, it appears that the sole stockholders and directors of the Gebhardt Lumber Company were V. Gebhardt, Gus Arndt, and G. D. Palmer, the first named being president and the last named, secretary and manager of the corporation. The PalmerHaworth Logging Company was organized on the tenth day of March, 1915, with the same stockholders and directors as the Gebhardt Lumber Company. On the same day the articles of incorporation of the PalmerHaworth Logging Company were executed, the Gebhardt Lumber Company held a special meeting of all the stockholders and passed a resolution to reduce the capital stock from $10,000 to $3,800. Thereafter, on the same day the board of directors of the Gebhardt Lumber Company held a special meeting and by resolution undertook to declare a dividend of $3,000 out of the tangible assets of the corporation, and not having — 198 — any money to pay such dividend, but having personal property used in pursuance of the business of the corporation, they resolved that the G-ebhardt Lumber Company transfer to its stockholders, and as dividends, the personal property involved in this action. Afterward, on March 30, 1915, the directors executed a bill of sale for this property to the Palmer-Haworth Logging Company, and on the same date that company elected its officers and passed a resolution purporting to purchase this same personal property and issued stock of the corporation in payment therefor. The bill of sale was never placed of record, and the property remained in the same location and to all appearances in the same use and control. Defendant requested the court to be permitted to amend the return on the writ of attachment in the second and third actions to conform to the facts as shown by the evidence. The court, as stated, refused to allow the amendment and defendant saved an exception. It is stated in 1 Wade on Attachment, Section 151, that: “The same principles apply to the amendment of a sheriff’s return on a writ of attachment, that would govern in any other case of a return on mesne process. * * There seems no good reason why amendment of the return on process of attachment should not be allowed within a reasonable time after judgment, when the rights of third parties have not intervened.” Subject to the restriction noted in the quotation, the sheriff is allowed with great liberality to amend his return so as to remedy defects therein, or make it conform to the facts where the application is made in due time. This is a common-law right, and does not depend upon statutory authority: 32 Cyc. 537; Main v. Lynch, 54 Md. 658. The return of the sheriff should always be allowed to be amended so as to conform to — 199 — the truth unless some new right has arisen in the meantime founded upon the defective return: Maloney v. Simpson, 226 Pa. St. 479 (75 Atl. 675); Weaver v. Southern Oregon Co., 30 Or. 348 (48 Pac. 171). In the present ease, the evidence shows that a valid attachment of the personal property involved was made under the writ. The testimony introduced does not contradict the return of the sheriff, but supplies an omission therein. No new rig’ht of third parties based upon the defective return has arisen. The claim to the property made by plaintiff is that they had obtained a right thereto before the attachment. According to its contention, no new right of the PalmerHaworth Logging Company intervened after the making of the attachment or could be based upon the defective return. The plaintiff alleges in this action that the defendant sheriff is in the possession of the personal property. "We think in justice to the defendant and the interested parties, the sheriff should be allowed to amend his return to conform to the facts proven. 4. As to the directed verdict for plaintiff: There was evidence in the case tending to show that Palmer and Grebhardt, the officers of both of the corporations mentioned, informed the parties acting in behalf of, and interested with, the plaintiff in the attachment action, that the personal property in suit was owned by the G-ebhardt Lumber Company the defendant in the writ for the purpose of enhancing the credit of that company. There appears to be no difference in the parties interested in the two corporations. Por some reason there seems to have been a separation so as to keep the logging business separate from the milling business. When Mr. Palmer who was acting as secretary and manager of both corporations pointed out — 200 — to the sheriff with the writ, the engine and other personal property at the time of the attachment, and furnished the officer with an inventory or list thereof, as the property of the Gebhardt Lumber Company, it was in effect a declaration and admission that the property was owned by the Gebhardt Lumber Company, and that plaintiff had no title thereto, and tended to show that there had been no transfer of the personalty in question from the Lumber Company to the Logging Company as claimed by the plaintiff: 4 Cyc. 746. Such property having been attached by the officer as the property of- the Gebhardt Lumber Company, the defendant in the writ, the action by the regular acting secretary and manager of the Palmer-Haworth Logging Company is prima facie binding upon the latter corporation and estops it from now claiming the attached property as its own: Cobbey on Replevin (2 ed.), § 147. The statements and admissions of both Palmer and Gebhardt, the officers of the plaintiff, which the testimony shows to have been made, tended to support the allegations of the defendant, that the personal property attached was at that time owned by the Gebhardt Lumber Company. It is in evidence that the defendant had no notice of plaintiff’s claim until the present action was commenced. The statements made by Gebhardt were partly denied by him. The action by Palmer was attempted to be explained on his part. Any conflict in the testimony was for the jury to pass upon. Therefore, we think the cause should have been submitted to the jury. 5. We concur with the learned trial judge that under the present state of the pleadings the defendant was not entitled to show fraud on the part of the plaintiff, it not being alleged: Coos Bay R. R. Co. v. Siglin, 26 Or. 387 (38 Pac. 192). Other errors are assigned, — 201 — but we notice no question that would be likely to arise upon a new trial which needs further consideration. The judgment of the lower court will be reversed and the cause remanded for a new trial. Reversed and Remanded. Rehearing Denied. McBride, C. J., and Burnett and Johns, JJ., concur.