Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-27

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related to the denial in the answer
of Marsh of the allegation of the
complaint to the effect that the Ore
gon Drilling Company, against which
Marsh had secured a Judgment, had
not at any time and has not now any
right, title or interest whatsoever in
or to said personal property or any
part thereof No articles of incor-
poration of the Oregon Drilling Com
pany nor any bill of sale executed to
it by EnOs as the Pacific Well Drill
ing Company nor any copy of either
was offered in evidence. If Marsh
had desired to challenge plaintiffs
right to foreclose its equitable lien
upon the machinery, on the ground
that Enos was not then the owner Of
the property, a plea in abatement
should have been interposed. Der
keny " Belfls, Or. 25S; Bump ".
Cooper, 20 Or. 527; Sutherlin "
Bloomer, so Or. 39S.
The tenth averment of the COM
plant anticipated a special defense
of that character but when that al
legation was controverted by the an
swer the denial was equivalent to
joining matters in abatement with a
plea in bar thereby waving the sub
ject of abatement. Hopwood " Pat
terson, 2 Or 40; Chamberlain " Hib-
bard, 26 Or. 42S; Rafferty, V. Davis,
"a Or. n,
1t will be remembered that the de-
cree provides that upon a sale of the
machinery, if the sum of money
realized therefrom be sufficient to
satisfy plaintiffs demand, the re-
mainder should be applied to Slush-
er's judgment, after liquidating
which if any money then remained it
should be given to Marsh on account
of his judgment. The evidence shows
that Slushers action was commenced
February 29, 1908, when he secured a
writ of attachment by which the ma
chinery was seized but such possess
sion was soon thereafter surrendered
and the lien of the levy released. A
notice of garnishment, however, was
served at Slusher's direction upon
the plaintiff, on the theory that it
had constructive possession of the
property, but no answer appears to
have been made in response to the
demand.
1t further appears that on March
II, 1908, plaintiff took and thereafter
retained actual possession of the
machinery so that when executions
were subsequently issued on the
judgments respectively secured by
Slusher and Marsh, no levy could
have been made upon the personal
property except by leaving with
plaintiffs agent, who had charge of
the machinery, certified copies of the
writs and notices specifying the par
ticular property thereby rendered
applicable to the executions. L. o.
L, Sec, 293 sub. 4; Sec 300 sub. 8.
The attempted" levy of the exc
cutiOns by the sheriff's assuming to
take possession Of the personal
property, which was then in plain
tiff's possession, created no lien upon
the machinery and if the judgments
respectively secured by Slusher and
Marsh were rendered against the
same defendant no preference right
should have been allowed by the
seizure which was undertaken. 1t
will be kept in mind that Slusher's
judgment was given against Enos
while Marsh's judgment was against
the Oregon Drilling Company which
was not party to this suit and so
far as disclosed by the pleadings
herein was not in privity with either
party. In view of the pleading and
of the prayer of the complaint, the
decree awarding to Slusher a right
superior to that of Marsh was not
erroneous in that particular
There is no averment in the an
swers filed herein by Slusher or
Marsh whereby plaintiff could be
rendered liable to pay any part Of
their judgments by reason OF the
stipulation in the contract with Enos
that it would pay on account of la
Dor, fuel and necessary expenses in
Cured by him in drilling but not to
exceed the sum of two and one-half
we'll may be bored"
Believing that no errors were
committed the decree should be af-
frmed and it is so ordered