Glen L. Olson, Inc. v. R. L. Thompson Enterprises, Inc.

759 P.2d 1087, 306 Or. 320
CourtOregon Supreme Court
DecidedAugust 2, 1988
DocketTC 32010; CA A38407; SC S34745
StatusPublished
Cited by1 cases

This text of 759 P.2d 1087 (Glen L. Olson, Inc. v. R. L. Thompson Enterprises, Inc.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glen L. Olson, Inc. v. R. L. Thompson Enterprises, Inc., 759 P.2d 1087, 306 Or. 320 (Or. 1988).

Opinion

LENT, J.

The first issue is whether the writ of garnishment obtained by plaintiff was sufficiently precise to meet the requirements of ORS 29.145.1 2The second issue is whether the court was free to amend the designation of garnishee in the writ. We hold that the writ was not sufficient to satisfy the statute and that the court was not free to amend the writ.

Plaintiff received a notice of a bulk sale from defendant R. L. Thompson Enterprises, Inc., to transferee “Bill’s Kwik-Mart # 4,[2] Inc.” The “Transferee’s Notice to Creditors” gave the transferee’s business address as 33126 S.W. Callahan Road, Scappoose, Oregon. Plaintiff thereafter filed a complaint against defendant, seeking judgment in the amount of a debt owed to plaintiff by defendant. Plaintiff also moved for a pre-judgment order directing the clerk of the court to issue a writ of garnishment against “Bill’s Quick Mart, Inc., and William C. Thompson.” Plaintiff also filed a copy of the “Transferee’s Notice to Creditors,” which gave the name and address of the intended garnishee as “Bill’s Kwik-Mart # 4, Inc., * * * Scappoose, Oregon.”

On November 30, 1984, the circuit court clerk issued a writ of garnishment to “William L. Thompson and Bill’s Kwik Mart[,] St. Helens, Oregon,” as the garnishees. On December 10,1984, the sheriff served the writ on “William L. Thompson personally and William L. Thompson as an officer of Bill’s Kwik-Mart at 52001 Columbia River Hwy. Scappoose, Or.”3 Neither garnishee named in the writ filed the [323]*323certificate required by ORS 29.235.4

This case is presently before this court because there are several corporations in the general area with the appellation “Bill’s Kwik Mart.” Plaintiff’s intended garnishee, “Bill’s Kwik Mart No. 4, Inc.,” is in Scappoose.5 There is also a Bill’s Kwik Mart # 2, Inc., in St. Helens, in which William Thompson is a shareholder and for which William Thompson is named agent. None of these corporations was specifically named in the original writ of garnishment. It appears from the pleadings and responses that, of all the potential garnishees which could have been included in a request for a writ of garnishment against “Bill’s Quick Mart, Inc., and William C. Thompson,” only Bill’s Kwik-Mart No. 4, Inc., of Scappoose held any attachable assets.

On February 21, 1985, plaintiff obtained a default [324]*324judgment against defendant for $24,019.68, with accrued interest. A part of the judgment ordered that “all money and property held under garnishment in this matter shall be paid over to the Sheriff’ to be applied toward payment of the judgment. On May 21, 1985, plaintiff filed “Allegations and Interrogatories” against “William Thompson and Bill’s Quick Mart, Inc.,” alleging that these parties had been served with a writ of garnishment in this matter, which they had refused to answer. These allegations were served on William Thompson personally and as an officer of “Bill’s Quick Mart, Inc.”

William Thompson replied personally and as an officer of Bill’s Quick Mart, Inc. In his personal reply, William Thompson alleged that he had no property in his possession belonging to defendant and prayed for judgment against plaintiff. In his reply as officer of Bill’s Quick Mart, Inc., William Thompson moved for an order dismissing plaintiffs allegations and interrogatories, alleging that he was not an officer or named agent of Bill’s Quick Mart, Inc., and that there was no such corporation in Oregon.

The circuit court found that William Thompson had not acted personally in any dealings with R. L. Thompson Enterprises and was thus “insulated from personal liability.” The court also found that service of garnishment against William Thompson as an officer of “Bill’s Quick Mart” was good notwithstanding the fact that plaintiff intended to garnish the assets held by “Bill’s Kwik-Mart, No. 4, Inc.,” because the “law will look to the substance rather than strict form.” The trial court amended the “proceeding” and title of this case to delete “Bill’s Quick Mart, Inc.,” as garnishee and to substitute “Bill’s Kwik Mart No. 4, Inc.,” as garnishee.

The court ordered Bill’s Kwik-Mart No. 4, Inc., to pay $23,910.28 plus interest. The newly designated garnishee, Bill’s Kwik-Mart No. 4, Inc., appealed and the Court of Appeals affirmed, Glen L. Olson, Inc. v. R.L. Thompson, Enter., Inc., 88 Or App 309, 745 P2d 1227 (1987), holding that ORCP 23B6 allowed plaintiffs pleadings to be amended to [325]*325conform to the evidence, which evidence in this case indicated that plaintiff intended to name Bill’s Kwik-Mart No. 4, Inc., as the garnishee. We reverse the decision of the Court of Appeals.

While an amendment of the pleadings might be within the scope of a court’s power, it does not solve plaintiffs dilemma in the present case. A writ of garnishment is the statutorily constructed method of attaching money or other property of a judgment debtor in the hands of a third person. While the writ is closely related to pleadings, it is not a pleading within the Oregon Rules of Civil Procedure subject to amendment by a court, and an amendment of the pleadings which surround or arise from the writ cannot change the writ.

Garnishment, used in the present action as a method of prejudgment attachment of a defendant’s assets held by a third party, has a long history in Oregon. The original laws of Oregon gave a plaintiff, “at any time after the commencement of the action and before judgment,” the ability to “have the property of the defendant attached.” General Laws of Oregon, ch 1, § 142, p 175 (Civ Code) (Deady 1845-1864). Section 143 gave the clerk of the court the authority to issue a writ of attachment, and section 147, subdivision 3, gave the sheriff, “to whom the writ is directed and delivered,” the authority to execute the writ against defendant’s personal property or debts in the possession of a third person. Section 150 required that any person or officer mentioned in subdivision 3 of section 147 should furnish the sheriff with a “certificate, designating the amount and description of any property in his possession belonging to the defendant.” If the third party served with the writ refused to file such a certificate, or if the certificate was unsatisfactory, the third party could be ordered to appear before the court where the action was pending. Id. at § 150, p 178. “In the proceedings thereafter upon such order, such person or association or corporation, shall be known as the garnishee.” Id. at § 161, p 179.

The sheriffs delivery of the writ to the garnishee and the garnishee’s answer could give rise to a series of actions and proceedings similar to other civil proceedings. After the court’s order to appear because of an unsatisfactory certificate in response to the writ, the plaintiff could serve upon the garnishee written allegations and interrogatories. Id. at § 162, [326]*326p 197-80. Section 163 required the garnishee to provide a written answer to the interrogatories on the day the garnishee was directed to appear in response to the court’s order. The plaintiff was permitted to file an answer and the garnishee was allowed to amend the answer.

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Cite This Page — Counsel Stack

Bluebook (online)
759 P.2d 1087, 306 Or. 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glen-l-olson-inc-v-r-l-thompson-enterprises-inc-or-1988.