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question presented for decision; and, having reached the conclusion that they are not the owners or entitled to the possession of the property described in the complaint, we have no alternative but to affirm the judgment.

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(27 Or. 563)

VULCAN IRON WORKS v. EDWARDS. (Supreme Court of Oregon. March 4, 1895.) EXECUTIOX-CLAIMS OF Turn PERSONS-JURY

TRIA-CoschUSIVENESS. 1. Under Hill's Code, $ 286, providing that when a third person shall claim property seized in execution, and give the sheriff written notice, thereof, the sheriff may summon a jury to try the claim, and notify the execution plaintiff of the trial, a claimant who gives the sheriff a written notice of his claim to property so seized thereby authorizes him to have the claim tried by jury.

2. When a claimant of property seized in execution notifies the sheriff, in writing, of his claim, as prescribed by Hill's Code, & 286, and the sheriff calls a jury and tries the claim, as authorized by sections 286 and 287, the verdict, if against the claimant, precludes his further action against the sheriff, though he takes no part in the trial.

3. Where a claimant of property seized in execution notifies the sheriff, in writing, of his claim, as prescribed by Hill's Code, $ 286, and the sheriff calls a jury to try the claim, as authorized by said section, by notifying the sheriff, before the trial, not to proceed therewith, or by replevying the property, the claimant does not preclude the sheriff to try the claim.

4. The fact that a claimant of property seized in execution, after notifying the sheriff, in writing, of his claim, withdraws the same, as authorized by Hill's Code, $ 288, before a trial to test it is bad, does not estop him to pursue any other remedy with reference to the property, against the sheriff or any other, before the execution sale.

On rehearing. For former opinion, see 36 Pac. 22.

Wirt Minor, for appellant. T. B. Handley, for respondent.

indemnity to the sheriff proceeding in accordance therewith, but shall not preclude the claimant from maintaining an action at law for the recovery of the possession of such property, or for damages for taking the same."

This court has already decided in Remdall V. Swackhamer, 8 Or. 502, and again in Lumbering Co. v. Hall, 9 Or. 93, that the verdict of a sheriff's jury, obtained in pursuance of the provisions of said sections, operated as a full indemnity to the sheriff; the court holding that the manifest object of the statute, in such case, was the protection of the officer against the claimant after a determination adverse to his claim of property. Thus far there is, and can be, no contention, as the cases cited are decisive. But a further construction of these sections is required, under the facts peculiar to the present case. There is no question but that the property was claimed by the plaintiff herein from the sheriff after his levy of the execution in the case of Smith v. Williams; but plaintiff contends that such claim did not authorize the sheriff to summon a jury to try the rights of property, as between the claimant, the plaintiff herein, and the plaintiff in the writ, and that, even if it did invest him with such authority, the notice served upon him by plaintiff, to the effect that it did not desire a trial by a sheriff's jury, and would not be bound by the result thereof, and the commencement of the present action prior to the consummation of such trial, was an abrogation of the authority so conferred. Plaintiff further contends that it had a right to terminate the trial by sheriff's jury in this manner, and thereby preserve its right of action against the sheriff for this property by replevin, or other adequate action. The basis of such contention is that the foregoing sections of our statute are the outgrowth of the earlier Ohio statutes, and that, having adopted the laws of that state, the known, settled construction thereof by its courts will be adopted by this court. We will first examine the statutes of Ohio referred to, in comparison with our own, and then the decisions of that state touching the construction of said statutes, and determine their applicability to the present status of our laws.

The Ohio statute on the subject is comprised in sections 426, 427, and 428 of the Code, which direct, in substance, that if the officer, by virtue of a writ of execution, shall levy the same on any goods and chattels claimed by any person other than the defendant, it shall be the duty of said officer forthwith to give notice in writing to some justice of the peace of the county, in which shall be set forth the names of the plaintiff and defendant, together with the name of the claimant, and at the same time to furnish the justice with a schedule of the property claimed. It is made the duty of the justice, on receipt of such notice and schedule, immediately to enter the same in his

WOLVERTON, J. The construction of sections 286 and 287 of Hill's Code of Oregon is involved in this controversy. These sections read as follows:

“Sec. 286. When personal property shall be seized by virtue of any execution, and any person other than the defendant shall claim such property, or any part thereof, and shall give notice thereof in writing, the sheriff may summon from his county six persons, qualified as jurors as between the parties, to try the validity of the claim, giving five days' notice of the time and place of the trial to the plaintiff in the execution or his attorney.

“Sec. 287. The sheriff, at the request of either party, shall subpoena witnesses, and compel them to attend and give testimony, and he shall administer the necessary oaths to the jurors and witnesses. On the trial the defendant and the claimant may be examined by the plaintiff as witnesses, and the verdict of such jury being rendered in writIng, and signed by the foreman, shall be a full

clocket, and issue a writ of summons to five claim in writing to the officer holding such disinterested men, having the qualifications execution, setting forth that such person is of electors, requiring them to appear before the owner of, and has a just claim to, any him, at the time and place named in the personal property levied upon by such officer writ, to serve as a jury in the trial of the by virtue of such execution, specifying the claimant's right to the property in contro- articles or items of property so alleged to be versy; and the time fixed for the trial must owned and claimed, it shall be the duty of not be more than three days after the date such officer to file the said claim, without of the writ. It is made the duty of the delay, in the office of some justice of the claimant to give two days' notice, in writing, peace in the proper county; and the said to the plaintiff or other party for whose justice shall thereupon proceed to docket the benefit the execution was issued and levied, cause, making the claimant the plaintiff, of the time and place of trial; and he is and the execution plaintiff the defendant, required to prove, to the satisfaction of the and fix a day of trial, within five days there justice, that such notice was given. If the after, of which the parties interested, their jury find that the right of property is in the agents or attorneys shall have three days' claimant, they shall find the value thereof, notice, unless the same be waived, and a and the justice shall thereupon render judg. speedier trial agreed to by the said parties, ment for the claimant for his costs, and that and further proceedings on said execution he have restitution of the goods. But, if shall be suspended until such claim shall the right of said goods is found not to be in be abated, or a final decision thereon had. the claimant, the justice is required to ren- Change of venue and continuances may be der judgment in favor of the party for whose had, new trials awarded, judgments and ex. benefit the execution issued, and against the ecutions and other proceedings had, as in claimant for costs, and award execution. other civil causes before justices. The jusSuch judgment for the claimant is declared tice shall try the cause, unless either party to be a justification of the officer in returning shall request a jury. In such case the trial "No goods" to the writ of execution, unless shall proceed before the jury. If the judgwithin three days after such trial the plain- ment is in favor of the claimant, the proptiff in the execution shall tender to the erty in dispute shall be delivered to him, sheriff an undertaking, with good and sutti- and the execution plaintiff shall pay the cient sureties, payable to the claimant, in costs. If the judgment is against the claimdouble the value of the property as assessed ant, he shall pay the costs, and the judgby the jury, to the effect that he will pay ment shall justify the officer in selling the all the damages sustained by reason of the property. An appeal may be taken from the detention or sale of such property, in which judgment of the justice, in any such case, case the officer having the execution is re- within 10 days from the rendition thereof, quired to deliver such undertaking to the and not thereafter, under the same rules claimant, and proceed to sell such property and provisions that may obtain in other as if no such trial of the right of property cases before justices of the peace. Section had taken place, and shall not be liable to 15, among other things, provides that “perthe claimant therefor. Proceedings under sonal property taken by virtue of a writ of attachment were to the same effect. The attachment may be claimed, and such furcourt, in Jones v. Carr, 16 Ohio St. 423, gives ther proceedings thereon had as is herein a synopsis of these provisions, and, comment- provided in cases of personal property taken ing thereon, say that: "The result of a trial in execution." At this time there were no of the claimant's right to the property lev- statutes of the territory allowing and reguied on in execution, whatever be the finding | lating attachments. In February, 1851, such of the jury and the judgment of the justice, an act was passed and became a law. By is or may be to conclude the claimant from sections 7 and 8 thereof, it was provided all right of redress against the officer mak- that if the officer, by virtue of any such ing the levy; for, if the finding of the jury writ of attachment, shall attach any goods be against the claimant, then, as was held or chattels claimed by any person other under a similar statute of 1831, in Paily v. than the defendant, it shall be the duty of Mansfield, 8 Ohio, 309, he cannot afterwards said officer forth with to give notice in writmaintain an action against the officer. If ing to some justice of the county, etc., and the verdict of the jury be in favor of the thereafter the proceedings prescribed were claimant, then the plaintiff in execution may in effect the same as where personal proptender the undertaking provided for by the erty is claimed by a third party when levy statute, and require the sale to proceed, and of execution is made, except that the justhe officer is not liable to the claimant there- tice is required to summon five jurors, and for. Such are the plain terms of the stat- the trial is had before the jury in any event. ute, and so it was held in Ralston v. Qursler, Gen. Laws Or. 1851, pp. 59, 60. In 1854 the 12 Ohio St. 105." Sections 9, 10, 11, 12, and territorial legislature passed "An act to reg13 of "An act subjecting real and personal ulate proceedings in actions at law in the estate to execution” (Laws Or. 1819, pp. 207, supreme and district courts,” consisting of 208) are, in substance, that when a person eight chapters. Title 13, c. 1, treats of atother than the defendant shall present a tachments, and title 1, c. 3, treats of executions. It seems that the provisions of these of the state. After a discussion of the stat. titles superseded all former laws touching ute and authorities, the court concludes: attachments and executions so far as they "The statute clearly regards the claimant as have any bearing upon the case at bar. Sec- the actor, throughout the proceeding. As tions 12, 13, tit. 1, c. 3, are substantially the such, it is made his duty to give notice in same as sections 286 and 287 of the present writing to the plaintiff in execution of the law, except that the latter clause of section time and place of trial; and no trial of his 287 is omitted. Section 131, tit. 13, c. 1, right to the property can be had unless he provides: “If any personal property attach- first proves, to the satisfaction of the jused be claimed by a third person as his prop- tice, that such notice was given. If the proerty, the sheriff may summon a jury to try ceeding may be instituted by the sheriff on the validity of such claim, and the same pro- his own motion, why should he not have ceedings shall be had thereon with like effect, been required to give notice of the time and as in case of seizure upon execution." The place of trial, both to the plaintiff in execulanguage is identical with section 156, Hill's tion and the claimant? If, in this case, the Code Or.,-the law as it now stands. In execution creditors had refused to waive the 1862 the legislature passed an act to provide want of proper notice, could the trial have a Code of Civil Procedure. By section 284 proceeded for the benefit of the sheriff? If of the act, section 13, tit. 1, c. 3, of the act not, then his protection must have failed. of 1854 was so amended that it is identical And it might well be questioned whether the with section 287 of our present laws.

plaintiff in execution would be bound to act This is a brief outline of the different sta- upon or regard a notice of the contemplated ges of legislation through which the law has trial, not having the sanction of the claimpassed, and of which sections 286 and 287 ant, nor purporting to emanate from him. are the outgrowth. It will be noted that the * * * We bold that the legislative intent Ohio statute provides that if the officer, by was to provide for the case of a claim made virtue of a writ of execution, shall levy the with reference to the statute, or accompasame upon any goods and chattels claimed nied with a demand of the remedy given by by any person other than the defendant, it the statute, and that in this case the justice shall be the duty of said officer forthwith of the peace had no jurisdiction to try the to give notice in writing to some justice of right of the plaintiff in error to the property the peace, etc. It then becomes incumbent in question, against his consent, and at the upon the claimant, if he desires a trial of the instance of the sheriff alone, nor to render rights of property before the justice, to give judgment against him in the premises.” Netwo days' notice in writing to the plaintiff braska has a statute very similar to that of in the writ of the time and place of trial, Ohio, making it the duty of the claimant, and he is required to prove that such notice after claiming the property, and the claim was given. The facts out of which Jones v. has been referred to a justice of the peace, Carr, supra, mainly relied upon by appellants and a jury summoned, to give two days' nofor a reversal of this case, arose, are as fol- tice, in writing, to the plaintiff, of the time lows: Samuel Smith, the sheriff, attached and place of such trial, and to prove that certain goods and chattels as the property such notice was given. The case of Storms of one Catlett Jones, of which the plaintiff v. Eaton, 5 Neb. 458, turned upon the answer in error claimed to be the owner. The sher- of defendant, the court saying: “There is iff thereupon, at his own instance, gave no- no allegation in the answer, nor proof, to tice in writing, to a justice of the peace, show at whose instance the proceedings bethat said goods had been taken under a fore the justice were instituted. It is said writ of attachment at the suit of Wilson that Eaton claimed the goods, but that, of Carr & Co. v. Catlett Jones; that L. M. Jones itself, is not sufficient to authorize the comclaimed the ownership thereof; and that he, mencement of summary proceedings under the sheriff, for his own protection, and with- the statute. Nor is there anything in the out the request of said claimant, desired a answer or bill of exceptions to show that the trial of the right of property in said goods justice rendered judgment on the finding of and chattels. The justice summoned a jury, the jury, as required by section 487 of the and appointed a day for trial. The plaintiff Code,”—and concluding that the case, as in error appeared only for the purpose of made, fell far short of being a judgment in denying that he ever authorized or requested bar, which would prevent the defendant in the proceeding to be instituted; declined to error from maintaining an action of replevin engage in the trial; refused to give or prove against the officer for the recovery of the notice to defendants in error, the plaintiffs in goods. The case of Pike v. Colvin, 67 III. the writ, of the time and place of trial; 227, simply decides that where an officer, unasked that the proceedings be dismissed; and der an execution, levies upon the goods of declined to further prosecute his alleged any person other than the defendant in the claim. Notwithstanding these facts, the jus- writ, the owner may maintain an action of tice proceeded with the trial, and the jury trover against the officer, as a wrongdoer, found against the claimant. The case was and that he was not compelled to replevy, taken up by writ of error to the court of or try his rights of property under the statcommon pleas, and then to the supreme court ute. These cases all go upon the principle

cer.

that the claimant must become the actor, been enacted for the protection of the officer, and must himself pursue the statutory direc- as we have seen, he may then summon a tions, so far as it is made incumbent upon jury to try the validity of the claim, but he him to act, before the proceeding can bind must give five days' notice of the time and him. The remedy is one of his own choos- | place of trial to the plaintiff in the execuing. If he adopts it, and takes the steps tion. The claimant invokes the remedy pointed out by the statute, he is bound by when he gives such notice, and if the offithe proceeding, so far as it concerns the offi- cer thereupon calls a jury, and proceeds

But he need not adopt the remedy, and with the trial of the right of property by the cannot be compelled to do so, and may pur- statutory method, the claimant is bound by sue any other available remedy against the the verdict, if against him, to the extent of officers, so long as he does not adopt this being precluded from further action against one. The proceeding is not judicial. It is, the officer. If the statute does not mean however, a summary remedy, which the this, the trial by a sheriff's jury is a meanclaimant may voluntarily invoke, and, when ingless formality, and the law a dead letter. duly invoked by him, he is necessarily bound If the claimant does not become an actor unby it. Lumbering Co. v. Hall, supra. Un- til he has actually participated in the trial, der the statute of 1819, the claimant was re- the law might become a source of vexation, quired, in order to invoke this remedy, to instead of a protection, to the officer. Under present a claim in writing to the officer hold- such a construction a claimant may give his ing the execution, setting forth that he was notice, and put the sheriff to the expense of the owner, and had just claim to the prop-calling a jury; then say to him the jury is erty. After the justice had fixed the day of not wanted, and its verdict will not be rectrial, it was then provided that the parties ognized. The counsel for appellant contend, interested should have three days' notice however, that a sheriff's jury may be inthereof, unless the same was waived, and voked, under section 156, without reference they agreed to a speedier trial. In this re- to the construction placed on section 286, by spect the law differs from the Ohio statute, a third party simply making claim to the which provides that such notice shall be giy- property, without notice in writing to the en and proved by the claimant. Now Sec- officer, where goods and chattels are attachtion 286, Hill's Code, provides that when any ed by virtue of a writ of attachment. We person other than the defendant shall claim are of the opinion, however, that section 156 such property, and shall give notice thereof should be construed in pari materia with in writing, then the sheriff may summon a section 286, and that a notice in writing is jury, and he (the sheriff) shall give five days' required in either case. notice of the time and place of trial to the Section 15 of the act subjecting real and plaintiff in the writ. What was before in- personal estate to execution provides, as we definite as to who should give the notice to have seen (Laws 1849, p. 208), that "personthe plaintiff in the writ, of the time and al property taken by virtue of a writ of atplace of trial, is now made definite, by mak- tachment may be clained, and such further ing it incumbent upon the sheriff to perform proceedings thereon had as is herein provid. that duty. The sheriff is now constituted the ed in cases of personal property taken in officer before whom the trial by jury shall execution.” The statute of 1851 is an indetake place, whereas before it was required pendent enactment, touching the subject of that a justice of the peace should direct the attachments only. This did not provide for proceedings. These constitute the principal notice in writing to the officer by the claimchanges in the law, which, it will be obsery- ant. The act of 1854, however, comprised ed, are so radical that the earmarks of the both subjects, that of attachment and exeformer are scarcely discernible in the pres- cution, as well as other matters relating to ent law, except in the one respect that the proceedings and actions at law, and purports claimant is required to give notice to the to be a general revision of the laws of the sheriff of his claim, in writing.

territory touching the same. Section 131 How and when does the claimant become of that act is identical with section 156 of an actor? In other words, what must he do our present Code, which provides that when in order to invoke this remedy? The Ohio attached property is claimeu by a third parstatute, as we have seen, under the con- ty the same proceedings shall be had therestruction given it by the supreme court of on, with like effect, as in case of seizure upthat state, requires the claimant, after the on execution. Sections 156 and 286 are there jury is summoned, and time of trial fixed by fore parts of the same legislative act, intend. the justice, to give two days' notice thereof ed by the legislature to be a revision of all to the plaintiff in the writ, and prove to former acts relating to attachments and exethe satisfaction of the justice that such no- cutions. It is hardly probable that the leg. tice was given. When the claimant does islature, by the same act, intended to pre. this, he becomes an actor. Much less is re- scribe different modes of procedure where quired of the claimant under section 286. the conditions exactly alike. It is When he has given notice of his claim, in more likely that, in combining the two acts writing, to the sheriff, he has done all that in one, it did not weigh carefully the lanthe law requires of him. The law having guage employed to express fully its exact

are

intent, and that by reason of a direct refer- session of the land is forcibly ejected by the ence, in section 131 (now 156), being made

other, the state courts have jurisdiction of an to the procedure touching executions, and

action to restore the possession to the ejected

party. providing that such procedure shall be the same as where levy is made by virtue of an Appeal from district court, Weld county. execution, it intended that it should be the Action by John T. Fulmele against Charles same in all respects. Hence, we believe it Camp. From a judgment for plaintiff, deintended the notice of claim should be made fendant appeals. Affirmed. in writing to the sheriff, the same as upon This action was brought by Camp against execution. The procedure would therefore Fulmele to recover the exclusive possession be the same throughout its entire scope. of 40 acres of land. The facts upon which

As to the second contention of coursel, - | plaintiff relies are substantially as follows: that the claimant was entitled to withdraw This land is included in, and a part of, the the proceedings before the sheriff's jury, S. W. 14 of section 3, township 5 N., of range and that the notice given by plaintiff to de 65 W., said section being one of the numfendant before the day of trial, to the effect bered sections embraced in the congressional that it did not desire a trial of its claim by grant to the Denver Pacific Railway & Tele a sheriff's jury, would not recognize his right graph Company. On the 13th day of April, to call a jury, nor subject itself or claim to 1870, John Evans, trustee for said company, such jury, and would not appear or be bound conveyed the whole of said section to Horby the action thereof, had the effect of such ace Greeley, trustee for the Union Colony withdrawal,-it would seem that section 288 of Colorado. Through divers mesne conveyaffords an answer. This section provides ances, appellee's grantor acquired the title that “the claimant, at any time before the of said company to one-twentieth of the land jury retire, may withdraw his claim.” This in controversy in 1878, and the other twenmeans apparently his claim of property tieth in 1882; acquired water rights for the made to the sheriff. When such claim is | irrigation of the same; paid taxes thereon; so withdrawn, the statute provides that the and caused the same, in the fall of 1886, trial shall proceed no further. Such being to be inclosed with a good and substantial the method adopted by the statute for a ter- fence, since which time alfalfa and other mination of trial before the sheriff's jury, it hay have been raised on the land. He conexcludes any other method of attaining that veyed the same on January 11, 1989, to apend. Hence, the attempted withdrawal of pellee, who immediately entered into possesthe proceedings, not being equivalent to a sion, and remained in the exclusive control withdrawal of its claim, did not terminate thereof until the 15th day of August, 1889, the trial before the sheriff's jury, and the when it is alleged appellant clandestinely sheriff rightfully proceeded therewith. Nei- and with force entered upon the land, and ther did the commencement of the present wrongfully withholds possession. The deaction have that effect. It is contended, fendant seeks to justify his intrusion upon however, that, if plaintiff had withdrawn plaintiff's possession upon the ground that his claim by the statutory method, he would by reason of a pre-emption entry made by be estopped from pursuing any other remedy Alexander upon the S. W. 14 of section 3, that he might have, as well against the sher- prior to the congressional grant, this oneiff as against other parties who might be- fourth section, which includes the land in come thereafter interested in the property. controversy, was excepted from such grant, We see no reason why such withdrawal and remained public land, subject to preshould work an estoppel, as against the emption or homestead entry; and that on claimant, in favor of the sheriff or any other the 27th day of April, 1889, he made homeparty, if action should be instituted at once, stead entry in the land office at Denver of or before sale of the property. As to what said quarter. His application to make final effect it may have had after sale, if the proof before the local land office was rejectclaim was not renewed, or an action begun ed, and is now pending on appeal before the touching the property in question, we are commissioner of the general land office. The not called upon at this time to decide. We plaintiff, learning of Alexander's pre-empare prompted by these considerations to ad- tion filing, made application on the 25th of here to the former opinion rendered herein. June, 1889, to be allowed to purchase the The judgment of the court below is there- land under the fifth section of the act of fore affirmed.

congress of March 3, 1887. His application was rejected by the local land office. rom

this decision he appealed, which appeal was (20 Colo. 495)

also pending at the time of the commenceFULMELE v. CAMP.1

ment of this action. The court below found (Supreme Court of Colorado. Jan. 7, 1895.)

that the plaintiff was entitled to the peaceJURISDICTION OF State Courts.

ful and undisturbed possession of the land Where, pending a controversy in the land

in question, and was, on the 15th day of office between parties as to their right to public August, 1889, in the actual and peaceful poslands, the party who has been in peaceful pos

session thereof, having the same inclosed · Rehearing denied March 4, 1893.

with a good and substantial fence, and that

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