Dufernoy v. Stitzel

3 Or. 58

• Court: Multnomah County Circuit Court, Oregon
• Decided: November 15, 1868
• Status: Published

Opinion

Upton, J.

Sections 155 and 281 of the codo, áre applicable to eases where an attachment has been served; and these sections of statute .make it the duty of the sheriff, in ordinary cases, to apply money received by him for “debts due the defendant” on the judgment against tlie defendant.

It does not appear with certainty whether this property had been attached so as to bring the case (if this is to be .treated as a payment) literally within the provisions of sections 155 and 281. But if the money is made on final process, without an attachment, the reason for the rule would be the same.

The fact that Leon Yial paid the money under protest, to avoid a forced sale of his property, and took an appeal, shows that he is disposed to test the question whether this is money,paid or received “on a debt due the defendant.” I confess that I have felt great doubt whether it was the duty of the sheriff to apply the money, notwithstanding the protest and appeal, as he would be bound to do if the judgment against Yial had become final.

Had the pleadings shown affirmatively what the grounds of the appeal were, and that there was a probability of the judgment being reversed, and that Yial has a good defense, the case would have presented still greater difficulties.

It does not affirmatively appear that the judgment against Yial is likely to be reversed, nor that the plaintiff in the original suit is in great danger of being left without remedy, if the judgment should be reversed and he be compelled to refund this money.

- It does not seem just to hold the defendant in custody upon a mere supposition or possibility that the judgment against his alleged debtor is erroneous, and especially because the plaintiff has prosecuted his demand against Leon Yial to judgment, and has, to a certain extent, taken the responsibility of declaring there is no error, by accepting the judgment and issuing execution upon it. It will be ordered that the money be applied on the" original judgment, without prejudice to the right of the plaintiff to move to set the credit aside, in case he is compelled to refund the money paid by Leon Yial.

[ * '* ] Upon the residue of the judgment, in the original action, being satisfied, an order for the petitioner’s discharge should be made.