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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.

(27 Or. 563)

VULCAN IRON WORKS v. EDWARDS. (Supreme Court of Oregon. March 4, 1895.) EXECUTION CLAIMS OF THIRD PERSONS-JURY TRIAL-CONCLUSIVENESS.

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 had, 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.

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 requir ed, 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

Wirt Minor, for appellant. T. B. Handley, of such contention is that the foregoing secfor respondent.

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

tions 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

docket, and issue a writ of summons to five disinterested men, having the qualifications of electors, requiring them to appear before him, at the time and place named in the writ, to serve as a jury in the trial of the claimant's right to the property in controversy; and the time fixed for the trial must not be more than three days after the date of the writ. It is made the duty of the claimant to give two days' notice, in writing, to the plaintiff or other party for whose benefit the execution was issued and levied, of the time and place of trial; and he is required to prove, to the satisfaction of the justice, that such notice was given. If the jury find that the right of property is in the claimant, they shall find the value thereof, and the justice shall thereupon render judg ment for the claimant for his costs, and that he have restitution of the goods. But, if the right of said goods is found not to be in the claimant, the justice is required to render judgment in favor of the party for whose benefit the execution issued, and against the claimant for costs, and award execution. Such judgment for the claimant is declared to be a justification of the officer in returning "No goods" to the writ of execution, unless within three days after such trial the plaintiff in the execution shall tender to the sheriff an undertaking, with good and sufficient sureties, payable to the claimant, in double the value of the property as assessed by the jury, to the effect that he will pay all the damages sustained by reason of the detention or sale of such property, in which case the officer having the execution is required to deliver such undertaking to the claimant, and proceed to sell such property as if no such trial of the right of property had taken place, and shall not be liable to the claimant therefor. Proceedings under attachment were to the same effect. The court, in Jones v. Carr, 16 Ohio St. 423, gives a synopsis of these provisions, and, comment-. ing thereon, say that: "The result of a trial of the claimant's right to the property levied on in execution, whatever be the finding | of the jury and the judgment of the justice, is or may be to conclude the claimant from all right of redress against the officer making the levy; for, if the finding of the jury be against the claimant, then, as was held under a similar statute of 1831, in Patty v. Mansfield, 8 Ohio, 369, he cannot afterwards maintain an action against the officer. If the verdict of the jury be in favor of the claimant, then the plaintiff in execution may tender the undertaking provided for by the statute, and require the sale to proceed, and the officer is not liable to the claimant therefor. Such are the plain terms of the statute, and so it was held in Ralston v. Oursler, 12 Ohio St. 105." Sections 9, 10, 11, 12, and 13 of "An act subjecting real and personal estate to execution" (Laws Or. 1849, pp. 207, 208) are, in substance, that when a person other than the defendant shall present a

claim in writing to the officer holding such execution, setting forth that such person is the owner of, and has a just claim to, any personal property levied upon by such officer by virtue of such execution, specifying the articles or items of property so alleged to be owned and claimed, it shall be the duty of such officer to file the said claim, without delay, in the office of some justice of the peace in the proper county; and the said justice shall thereupon proceed to docket the cause, making the claimant the plaintiff, and the execution plaintiff the defendant, and fix a day of trial, within five days thereafter, of which the parties interested, their agents or attorneys shall have three days' notice, unless the same be waived, and a speedier trial agreed to by the said parties, and further proceedings on said execution shall be suspended until such claim shall be abated, or a final decision thereon had. Change of venue and continuances may be had, new trials awarded, judgments and executions and other proceedings had, as in other civil causes before justices. The justice shall try the cause, unless either party shall request a jury. In such case the trial shall proceed before the jury. If the judgment is in favor of the claimant, the property in dispute shall be delivered to him, and the execution plaintiff shall pay the costs. If the judgment is against the claimant, he shall pay the costs, and the judgment shall justify the officer in selling the property. An appeal may be taken from the judgment of the justice, in any such case, within 10 days from the rendition thereof, and not thereafter, under the same rules and provisions that may obtain in other cases before justices of the peace. Section 15, among other things, provides that "personal property taken by virtue of a writ of attachment may be claimed, and such further proceedings thereon had as is herein provided in cases of personal property taken in execution.". At this time there were no statutes of the territory allowing and regulating attachments. In February, 1851, such an act was passed and became a law. By sections 7 and 8 thereof, it was provided that if the officer, by virtue of any such writ of attachment, shall attach any goods or 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 county, etc., and thereafter the proceedings prescribed were in effect the same as where personal property is claimed by a third party when levy of execution is made, except that the justice is required to summon five jurors, and the trial is had before the jury in any event. Gen. Laws Or. 1851, pp. 59, 60. In 1854 the territorial legislature passed "An act to regulate proceedings in actions at law in the supreme and district courts," consisting of eight chapters. Title 13, c. 1, treats of attachments, and title 1, c. 3, treats of execu

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tions. It seems that the provisions of these titles superseded all former laws touching attachments and executions so far as they have any bearing upon the case at bar. Sections 12, 13, tit. 1, c. 3, are substantially the same as sections 286 and 287 of the present law, except that the latter clause of section 287 is omitted. Section 131, tit. 13, c. 1, provides: "If any personal property attached be claimed by a third person as his property, the sheriff may summon a jury to try the validity of such claim, and the same proceedings shall be had thereon with like effect, as in case of seizure upon execution." The language is identical with section 156, Hill's Code Or.,-the law as it now stands. 1862 the legislature passed an act to provide a Code of Civil Procedure. By section 284 of the act, section 13, tit. 1, c. 3, of the act of 1854 was so amended that it is identical with section 287 of our present laws.

In

This is a brief outline of the different stages of legislation through which the law has passed, and of which sections 286 and 287 are the outgrowth. It will be noted that the Ohio statute provides that if the officer, by virtue of a writ of execution, shall levy the same upon 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, etc. It then becomes incumbent upon the claimant, if he desires a trial of the rights of property before the justice, to give two days' notice in writing to the plaintiff in the writ of the time and place of trial, and he is required to prove that such notice was given. The facts out of which Jones v. Carr, supra, mainly relied upon by appellants for a reversal of this case, arose, are as follows: Samuel Smith, the sheriff, attached certain goods and chattels as the property of one Catlett Jones, of which the plaintiff in error claimed to be the owner. The sheriff thereupon, at his own instance, gave notice in writing, to a justice of the peace, that said goods had been taken under a writ of attachment at the suit of Wilson Carr & Co. v. Catlett Jones; that L. M. Jones claimed the ownership thereof; and that he, the sheriff, for his own protection, and without the request of said claimant, desired a trial of the right of property in said goods and chattels. The justice summoned a jury, and appointed a day for trial. The plaintiff in error appeared only for the purpose of denying that he ever authorized or requested the proceeding to be instituted; declined to engage in the trial; refused to give or prove notice to defendants in error, the plaintiffs in the writ, of the time and place of trial; asked that the proceedings be dismissed; and declined to further prosecute his alleged claim. Notwithstanding these facts, the justice proceeded with the trial, and the jury found against the claimant. The case was taken up by writ of error to the court of common pleas, and then to the supreme court

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of the state. After a discussion of the statute and authorities, the court concludes: "The statute clearly regards the claimant as the actor, throughout the proceeding. As such, it is made his duty to give notice in writing to the plaintiff in execution of the time and place of trial; and no trial of his right to the property can be had unless he first proves, to the satisfaction of the justice, that such notice was given. If the proceeding may be instituted by the sheriff on his own motion, why should he not have been required to give notice of the time and place of trial, both to the plaintiff in execution and the claimant? If, in this case, the execution creditors had refused to waive the want of proper notice, could the trial have proceeded for the benefit of the sheriff? If not, then his protection must have failed. And it might well be questioned whether the plaintiff in execution would be bound to act upon or regard a notice of the contemplated trial, not having the sanction of the claimant, nor purporting to emanate from him. We hold that the legislative intent was to provide for the case of a claim made with reference to the statute, or accompanied with a demand of the remedy given by the statute, and that in this case the justice of the peace had no jurisdiction to try the right of the plaintiff in error to the property in question, against his consent, and at the instance of the sheriff alone, nor to render judgment against him in the premises." Nebraska has a statute very similar to that of Ohio, making it the duty of the claimant, after claiming the property, and the claim has been referred to a justice of the peace, and a jury summoned, to give two days' notice, in writing, to the plaintiff, of the time and place of such trial, and to prove that such notice was given. The case of Storms v. Eaton, 5 Neb. 458, turned upon the answer of defendant, the court saying: "There is no allegation in the answer, nor proof, to show at whose instance the proceedings before the justice were instituted. It is said that Eaton claimed the goods, but that, of itself, is not sufficient to authorize the commencement of summary proceedings under the statute. Nor is there anything in the answer or bill of exceptions to show that the justice rendered judgment on the finding of the jury, as required by section 487 of the Code," and concluding that the case, as made, fell far short of being a judgment in bar, which would prevent the defendant in error from maintaining an action of replevin against the officer for the recovery of the goods. The case of Pike v. Colvin, 67 Ill. 227, simply decides that where an officer, under an execution, levies upon the goods of any person other than the defendant in the writ, the owner may maintain an action of trover against the officer, as a wrongdoer, and that he was not compelled to replevy, or try his rights of property under the statute. These cases all go upon the principle

that the claimant must become the actor, and must himself pursue the statutory directions, so far as it is made incumbent upon him to act, before the proceeding can bind him. The remedy is one of his own choosing. If he adopts it, and takes the steps pointed out by the statute, he is bound by the proceeding, so far as it concerns the offi

cer.

But he need not adopt the remedy, and cannot be compelled to do so, and may pursue any other available remedy against the officers, so long as he does not adopt this one. The proceeding is not judicial. It is, however, a summary remedy, which the claimant may voluntarily invoke, and, when duly invoked by him, he is necessarily bound by it. Lumbering Co. v. Hall, supra. Under the statute of 1849, the claimant was required, in order to invoke this remedy, to present a claim in writing to the officer holding the execution, setting forth that he was the owner, and had just claim to the property. After the justice had fixed the day of trial, it was then provided that the parties interested should have three days' notice thereof, unless the same was waived, and they agreed to a speedier trial. In this respect the law differs from the Ohio statute, which provides that such notice shall be given and proved by the claimant. Now section 286, Hill's Code, provides that when any person other than the defendant shall claim such property, and shall give notice thereof in writing, then the sheriff may summon a jury, and he (the sheriff) shall give five days' notice of the time and place of trial to the plaintiff in the writ. What was before indefinite as to who should give the notice to the plaintiff in the writ, of the time and place of trial, is now made definite, by making it incumbent upon the sheriff to perform that duty. The sheriff is now constituted the officer before whom the trial by jury shall take place, whereas before it was required that a justice of the peace should direct the proceedings. These constitute the principal changes in the law, which, it will be observed, are so radical that the earmarks of the former are scarcely discernible in the present law, except in the one respect that the claimant is required to give notice to the sheriff of his claim, in writing.

How and when does the claimant become an actor? In other words, what must be do in order to invoke this remedy? The Ohio statute, as we have seen, under the construction given it by the supreme court of that state, requires the claimant, after the jury is summoned, and time of trial fixed by the justice, to give two days' notice thereof to the plaintiff in the writ, and prove to the satisfaction of the justice that such notice was given. When the claimant does this, he becomes an actor. Much less is required of the claimant under section 286. When he has given notice of his claim, in writing, to the sheriff, he has done all that the law requires of him. The law having

been enacted for the protection of the officer, as we have seen, he may then summon a jury to try the validity of the claim, but he must give five days' notice of the time and place of trial to the plaintiff in the execu tion. The claimant invokes the remedy when he gives such notice, and if the officer thereupon calls a jury, and proceeds with the trial of the right of property by the statutory method, the claimant is bound by the verdict, if against him, to the extent of being precluded from further action against the officer. If the statute does not mean this, the trial by a sheriff's jury is a meaningless formality, and the law a dead letter. If the claimant does not become an actor until he has actually participated in the trial, the law might become a source of vexation, instead of a protection, to the officer. Under such a construction a claimant may give his notice, and put the sheriff to the expense of calling a jury; then say to him the jury is not wanted, and its verdict will not be recognized. The counsel for appellant contend, however, that a sheriff's jury may be invoked, under section 156, without reference to the construction placed on section 286, by a third party simply making claim to the property, without notice in writing to the officer, where goods and chattels are attached by virtue of a writ of attachment. We are of the opinion, however, that section 156 should be construed in pari materia with section 286, and that a notice in writing is required in either case.

Section 15 of the act subjecting real and personal estate to execution provides, as we have seen (Laws 1849, p. 208), that "personal property taken by virtue of a writ of attachment may be claimed, and such further proceedings thereon had as is herein provided in cases of personal property taken in execution." The statute of 1851 is an independent enactment, touching the subject of attachments only. This did not provide for notice in writing to the officer by the claimant. The act of 1854, however, comprised both subjects, that of attachment and execution, as well as other matters relating to proceedings and actions at law, and purports to be a general revision of the laws of the territory touching the same. Section 131 of that act is identical with section 156 of our present Code, which provides that when attached property is claimed by a third party the same proceedings shall be had thereon, with like effect, as in case of seizure upon execution. Sections 156 and 286 are therefore parts of the same legislative act, intended by the legislature to be a revision of all former acts relating to attachments and executions. It is hardly probable that the legislature, by the same act, intended to prescribe different modes of procedure where the conditions are exactly alike. It is more likely that, in combining the two acts in one, it did not weigh carefully the language employed to express fully its exact

intent, and that by reason of a direct reference, in section 131 (now 156), being made to the procedure touching executions, and providing that such procedure shall be the same as where levy is made by virtue of an execution, it intended that it should be the same in all respects. Hence, we believe it intended the notice of claim should be made in writing to the sheriff, the same as upon execution. The procedure would therefore be the same throughout its entire scope.

As to the second contention of counsel, that the claimant was entitled to withdraw the proceedings before the sheriff's jury, and that the notice given by plaintiff to defendant before the day of trial, to the effect that it did not desire a trial of its claim by a sheriff's jury, would not recognize his right to call a jury, nor subject itself or claim to such jury, and would not appear or be bound by the action thereof, had the effect of such withdrawal,-it would seem that section 288 affords an answer. This section provides that "the claimant, at any time before the jury retire, may withdraw his claim." This means apparently his claim of property made to the sheriff. When such claim is so withdrawn, the statute provides that the trial shall proceed no further. Such being the method adopted by the statute for a termination of trial before the sheriff's jury, it excludes any other method of attaining that end. Hence, the attempted withdrawal of the proceedings, not being equivalent to a withdrawal of its claim, did not terminate the trial before the sheriff's jury, and the sheriff rightfully proceeded therewith. Neither did the commencement of the present action have that effect. It is contended, however, that, if plaintiff had withdrawn his claim by the statutory method, he would be estopped from pursuing any other remedy that he might have, as well against the sheriff as against other parties who might become thereafter interested in the property. We see no reason why such withdrawal should work an estoppel, as against the claimant, in favor of the sheriff or any other party, if action should be instituted at once, or before sale of the property. As to what effect it may have had after sale, if the claim was not renewed, or an action begun touching the property in question, we are not called upon at this time to decide. We are prompted by these considerations to adhere to the former opinion rendered herein. The judgment of the court below is therefore affirmed.

(20 Colo. 495)

FULMELE v. CAMP.1 (Supreme Court of Colorado.

Jan. 7, 1895.) JURISDICTION OF STATE Courts. Where, pending a controversy in the land office between parties as to their right to public lands, the party who has been in peaceful pos

Rehearing denied March 4, 1895.

session of the land is forcibly ejected by the other, the state courts have jurisdiction of an action to restore the possession to the ejected party.

Appeal from district court, Weld county. Action by John T. Fulmele against Charles Camp. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by Camp against Fulmele to recover the exclusive possession of 40 acres of land. The facts upon which plaintiff relies are substantially as follows: This land is included in, and a part of, the S. W. 4 of section 3, township 5 N., of range 65 W., said section being one of the numbered sections embraced in the congressional grant to the Denver Pacific Railway & Telegraph Company. On the 13th day of April, 1870, John Evans, trustee for said company, conveyed the whole of said section to Horace Greeley, trustee for the Union Colony of Colorado. Through divers mesne conveyances, appellee's grantor acquired the title of said company to one-twentieth of the land in controversy in 1878, and the other twentieth in 1882; acquired water rights for the irrigation of the same; paid taxes thereon; and caused the same, in the fall of 1886, to be inclosed with a good and substantial fence, since which time alfalfa and other hay have been raised on the land. He conveyed the same on January 11, 1889, to appellee, who immediately entered into possession, and remained in the exclusive control thereof until the 15th day of August, 1889, when it is alleged appellant clandestinely and with force entered upon the land, and wrongfully withholds possession. The defendant seeks to justify his intrusion upon plaintiff's possession upon the ground that by reason of a pre-emption entry made by Alexander upon the S. W. 4 of section 3, prior to the congressional grant, this onefourth section, which includes the land in controversy, was excepted from such grant, and remained public land, subject to preemption or homestead entry; and that on the 27th day of April, 1889, he made homestead entry in the land office at Denver of said quarter. His application to make final proof before the local land office was rejected, and is now pending on appeal before the commissioner of the general land office. The plaintiff, learning of Alexander's pre-emption filing, made application on the 25th of June, 1889, to be allowed to purchase the land under the fifth section of the act of congress of March 3, 1887. His application was rejected by the local land office. From this decision he appealed, which appeal was also pending at the time of the commencement of this action. The court below found that the plaintiff was entitled to the peaceful and undisturbed possession of the land in question, and was, on the 15th day of August, 1889, in the actual and peaceful possession thereof, having the same inclosed with a good and substantial fence, and that

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