White v. Thompson

3 Or. 115

• Court: Washington County Circuit Court, Oregon
• Decided: October 15, 1869
• Status: Published

Opinion

Upton, J.

The following rulings were made in the ease:

The affidavit for the attachment was insufficient to confer jurisdiction to issue the writ.

The writ of attachment is regular on its face, and protects the officer when sued for damages only.

The order appointing Bridgwater to serve process is in the form prescribed by sec. 120 of the justice’s act. The court had jurisdiction to pass upon the necessity of the appointment, and has made such record as the law req ñires. When a court has acquired jurisdiction and is acting within it, error will not be presumed.

There being no fraud alleged, parol evidence is not admissible to dispiite the docket of the justice of the peace, or to so explain it as to make it import a want of jurisdiction, when on its face it imports jurisdiction of tbe person.

Tbe docket entry is evidence that the defendant appeared in the cause, and the appearance is equivalent to service of summons. The defendant’s withdrawal from the cause did not oust the jurisdiction. The court had jurisdiction to render judgment and issue the execution.

A void attachment, although regular on its face, does not protect the defendants Thompson and Martin.

Property can not be claimed as exempt from execution, unless “selected and reserved by the judgment debtor or Ms agent at the time of the levy,” or before sale and witbin a reasonable time after tbe levy shall be known to him. It is too late, for one knowing of tbe levy from tbe first, to set np tbe claim after sale. (Code sec. 279.)

Tbe plaintiff should recover from tbe defendants Thompson and Martin for tbe detention, from tbe time of tbe seizure of tbe property to tbe levy of tbe execution.

Tbe plaintiff bad a verdict for $24.00.