Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-27
OREGON SUPREME COURT DECISIONS
" I9AI Published BY Courtesy Of f. A. Turner Reporter Of the
Supreme Court
VGllnlck 1lI,l ', Marvin, WallOwa County.

'VIihich N' Marvin, NallOWa County,
decided November IA. 1911.
w ). Gollnick, respondent, V. Edgar
Marvin, appellant Appeal from the
circuit court for Wallowa county. Hon
~. W. Knowles, Judge. Argued and
submitted at Pendleton. October 20
Isl 81 Oral argument by A S. Cooley
loneahan Cooley on the brief) for
appellant o. NJ. Corking for respon-
dent Moore, J. Reversed.
This is an action of replevin. The
complaint alleges, in effect. that at all
the times stated therein plaintiff was
'ne owner and entitled to the imme-
dlate possession of two horses, par-
ucularly describing them. each of the
value Of Sl95.00; that on March 20.
1911, defendant wrongfully took DOS
session of the animals in Wallowa
county and two days thereafter upon
ueLnand therefor he declined and still
refuses to deliver them to plaintiff;
ana that the horses are well broken
ana suitable for farm work in which
their earning capacity is $500 a day.
Judgment was demanded for the nos
session OF the horses, or if they could
not be secured for the recovery of
S59O.OO their alleged value and S2.OO
day as damages or their detention
The answer admitted the demand
alleged but denied all other averments
OF the complaint For a further de-
tense it was alleged that defendant
was the sheriff of that county; that
an action was commenced in the cir
cult court thereof by the Wallowa
National Bank against Gollnick to re-
cover money, and writ of attachment
having been issued in that action, de-
tendant by virtue thereof obtained
possession of the horses, the cost of
Keeping which was so great he was
compelled to sell them in the manner
prescribed by law, realizing therefor
$4,000; and that obedience to the
writ constituted the taking and deten-
tion set forth in the complaint.
The reply denied the allegations of
new matter in the answer and alleged
that plaintiff was engaged in farm
ing, by which occupation he had ha-
bttually earned a living; that the
horses were necessary to enable him
to pursue his business, and their rea-
sonable value did not exceed s4OO. 90;
that on March 22 1911, plaintiff noti-
fled defendant that he claimed the
team as exempt from attachment and
execution, and demanded their imme-
diate possession, but defendant refused
to deliver them and thereafter pre-
tended to have sold them for $4,000;
that such disposal was not bona fide
in excess of $4,000, and by reason
thereof he is estopped from asserting
or proving that their value was
greater than the sum last named.
Based on these issues the cause was
tried and judgment having been rem
dered for plaintiff in the sum of 1855
as the value of the horses and $54.OO
as the damages sustained by their
detention defendant appeals.
Moore, ], 1t is contended that the
testimony gwen by plaintiffs witness
did not show tnat he was entitled to
the possession of the horses as prop
erty exempt from execution, and by
reason thereof an error was commit
ted in refusing to grant a judgment
of nOnsuit The testimony discloses
that in 1909 Gollnick came with his
family to Wallowa county, Oregon,
where he leased farm which he cul-
tivated. He purchased in that county
a tract of land which he conveyed to
H. c. Laird in exchange for four
horses, but having no feed for them
they were left with Laird who( pur-
suant to the service of a copy of a
writ of attachment and of notice spec
flying the property, surrendered the
animals to the defendant herein. The
sheriff was thereupon served with a
written demand for the immediate
possession of the horses on the ground
that they were necessary to enable
GOlllick to carry on the occupation of
farming, in the pursuit of which he
had habtually earned a living for
himself and his family, The horses
were not surrendered, however, but
were sold as alleged in the answer.
1t also seems that soon after the
attachment of the animals Gollnick
left Oregon and went to California,
but it does not appear what business
he is pursuing in the latter state, nor
is it clearly indicated what use he
intended to make of the horses he
claimed as exempt from execution.
Laird testified that Gollnick stated he
had a brother-in-law at Walla Walla,