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thereof shall be thereby required to appear, or within a time to be specified in the order, the plaintiff may serve upon such garnishee or officer thereof written allegations and interrogatories touching any of the property liable to attachment as the property of the defendant, as provided in subdivision 3 of section 301, and to which such garnishee or officer thereof is required to give a certificate as provided in section 304. [L. 1862; D. Cd. § 162; H. C. § 164.]

The allegations here provided are designed to bring upon the record the cause of action which the original defendant had against the garnishee, and to which the plaintiff has become subrogated by virtue of the attachment: Case v. Noyes, 16 Or. 329, 19 Pac. 104. They are in the nature of a complaint: Smith v. Conrad, 23 Or. 211, 31 Pac. 398.

Where these allegations are not filed no

$317. Answer of Garnishee.

valid judgment can be rendered against the garnishee: Smith v. Conrad, supra; even though he waive service of such allegation: Smith v. Conrad, supra.

The plaintiff can not file his allegations and interrogatories after the time therefor has expired, nor can the affidavit used before the judge to obtain the order on the garnishee to answer be treated as such allegations: Case v. Noyes, 16 Or. 539, 21 Pac. 46.

On the day when the garnishee or officer thereof shall be required to appear before the court or judge thereof, he shall return the allegations and interrogatories of the plaintiff to the court or judge, with his written answer thereto, unless for good cause shown a further time be allowed. Such answer shall be on oath, and shall contain a full and direct response to all the allegations and interrogatories. [L. 1862; D. Cd. § 163; H. C. § 165.]

An answer is required; no demurrer by the garnishee is authorized: Faull v. Alaska G. & S. Min. Co. 14 Fed. 657.

It is the duty of the garnishee, who had notice of an assignment of the debt, to plead it in his answer: Phipps v. Rieley, 15 Or. 496, 16 Pac. 185; and if he neglects to so answer, the judgment rendered against him in the garnishment proceedings will be no defense to an action on the debt by the assignee of such claim: Phipps v. Rieley, supra; Mullaney v. Evans, 33 Or. 336. 54 Pac. 886.

The answer of a garnishee which simply denies in haec verba the allegations of the complaint does not raise an issue, and the

complaint will be taken as confessed and judgment rendered against the garnishee, where it appears tnat such denials were deliberately made. Doubtful and evasive answers should be taken against the garnishee: Dawson v. Maria, 15 Or. 556, 16 Pac. 413.

The answers to interrogators are designed to aid the plaintiff in bringing distinctly and clearly before the court the facts in relation to the property attached in the hands of the garnishee, and such answer may be used as evidence upon the trial against the garnishee: Case v. Noyes, 16 Or. 329, 19 Pac. 104.

$318. Garnishee May be Compelled to Answer.

If the garnishee or officer thereof fail to answer, the court or judge thereof, on motion of the plaintiff, may compel him to do so, or the plaintiff may, at any time after the entry of judgment against the defendant in the action, have judgment against the garnishee for want of such answer. In no case shall judgment be given against the garnishee for a greater amount than the judgment against the defendant in the action. [L. 1862; D. Cd. § 164; H. C. § 166.]

See note to preceding section.

$319. Exceptions to Answer.

The plaintiff may except to the answer of the garnishee or officer thereof for insufficiency within such time as may be prescribed or allowed, and if the same be adjudged insufficient, such garnishee or officer may be allowed. to amend his answer, on such terms as may be proper, or judgment may

be given for the plaintiff as for want of answer, or such garnishee or officer may be compelled to make a sufficient answer. [L. 1862; D. Cd. § 165; H. C. § 167.]

§ 320. Reply to Answer.

The plaintiff may reply to the whole or part of the answer within such time as may be prescribed or allowed, and the issues arising thereon shall be tried as ordinary issues of fact between plaintiff and defendant. If the answer be not excepted or replied to within the time prescribed or allowed, it shall be taken to be true and sufficient. [L. 1862; D. Cd. § 166; H. C. § 168.]

§ 321. Judgment Against Garnishee.

If by the answer it shall appear, or if upon trial it shall be found, that the garnishee, at the time of the service upon him or the officer thereof of the copy of the writ of attachment and notice, had any property of the defendant's liable to attachment as provided in subdivision 3 of section 301, and as to which such garnishee or officer thereof is required to give a certificate as provided in section 304, beyond the amount admitted in the certificate, or in any amount if the certificate was refused, judgment may be given against such garnishee for the value thereof in money. The garnishee may at any time before judgment discharge himself by delivering, paying, or transferring the property to the sheriff. [L. 1862; D. Cd. § 167; H. C. § 169.]

§ 322. Execution Against Garnishee.

Executions may issue upon judgments against a garnishee as upon ordinary judgments between plaintiff and defendant, and costs and disbursements shall be allowed and recovered in like manner. Witnesses, including the defendant and garnishee or officer thereof, may be required to appear and testify upon such proceeding against a garnishee, as upon the trial of an issue of fact. [L. 1862; D. Cd. § 168; H. C. § 170.]

§ 323. Restraining Order Against Garnishee.

The court or judge thereof in its discretion may, at the time of the application of the plaintiff for the order provided for in section 304, and at any time thereafter before judgment against the garnishee, by order restrain the garnishee from paying, transferring, or in any manner disposing of or injuring any of the property of the defendant, alleged by the plaintiff to be in the garnishee's possession, control, or owing by him to the defendant, and disobedience to such order may be punished as a contempt. [L. 1862; D. Cd. § 169 ; H. C. §171.]

§ 324. Provisional Remedies.

The proceedings provided for in chapters I, II, and III of title IV shall be known as provisional remedies. [L. 1862; D. Cd. § 170; H. C. § 172.]

TITLE V.

OF ACTIONS AT LAW IN PARTICULAR CASES.

CHAPTER I.

II.

OF ACTIONS TO RECOVER REAL PROPERTY
OF ACTIONS FOR NUISANCE, WASTE, AND TRESPASS
ON REAL PROPERTY

325

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343

III.

OF ACTIONS ON OFFICIAL UNDERTAKINGS, AND FOR
FINES AND FORFEITURES

350

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IV.

OF ACTIONS BY AND AGAINST PUBLIC CORPORATIONS
AND OFFICERS

359

V.

OF ACTIONS TO AVOID CHARTERS, LETTERS PATENT,
AND TO PREVENT THE USURPATION OF AN OFFICE
OR FRANCHISE, AND DETERMINE THE RIGHT
THERETO

364

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VI.

OF ACTIONS BY AND AGAINST EXECUTORS OR ADMIN-
ISTRATORS

379

CHAPTER I.

OF ACTIONS TO RECOVER REAL PROPERTY.

§ 325. Mode of Proceeding, General Provisions Govern.

The mode of proceeding in the actions provided for in this chapter, from the commencement to the determination thereof, and thereafter until satisfaction of the judgment be had, shall be according to the general provisions of this code upon the subject of actions at law, except as herein or otherwise specially provided. [L. 1862; D. Cd. § 312; H. C. § 315.]

§ 326. Parties in Action to Recover Real Property.

Any person who has a legal estate in real property, and a present right to the possession thereof, may recover such possession, with damages for withholding the same, by an action at law. Such action shall be commenced. against the person in the actual possession of the property at the time, or if the property be not in the actual possession of any one, then against the person acting as the owner thereof. [L. 1862; D. Cd. § 313; H. C. § 316.]

ACTION TO RECOVER POSSESSION OF REAL PROPERTY, GENERALLY.This is the action of ejectment, and is merely a possessory action: Goldsmith v. Smith, 21 Fed. 613; but united with certain other actions: Norton v. Elwert, 29 Or. 591, 41 Pac. 926.

The plaintiff, to maintain it, must have a present right of possession: Goldsmith v. Smith, supra; and a legal estate: Phillippi v. Thompson, 8 Or. 433; Johnson v. Crookshanks, 21 Or. 340, 28 Pac. 78; Duffy v. Mix, 24 Or. 267, 33 Pac. 807. It is the remedy for one out of possession: O'Hara v. Parker, 27 Or. 168, 39 Pac. 1004. Hence, an executor or administrator has no such estate in the land of the testator as will allow him to maintain an action under this title to recover it: Humphries v. Taylor, 5 Or. 261. Nor can a widow maintain such action to recover the possession during the quarantine period: Aiken v. Aiken, 12 Or. 206, 6 Pac. 682. It is intimated that a purchaser at a sheriff's sale on execution could not maintain such action until deed was issued: Aiken v. Aiken, 12 Or. 206.

A widow entitled to dower, which has not been assigned, may maintain such action if her husband's grantee refuses to give possession: McKay v. Freeman, 6 Or. 449. The donee of a land claim may maintain an action for possession against one who shows no title but possession: Keith v. Cheeney, 1 Or. 285.

An original purchaser of mining lands who has complied with the requirements and has obtained a patent certificate from the officers of the government, has such an estate as may be recovered by ejectment: Rader v. Allen, 27 Or. 348, 41 Pac. 154.

One who has held possession of land adversely for the statutory period has the necessary title to maintain the action: Joy v. Stump, 14 Or. 361, 12 Pac. 929.

Prior possession is sufficient legal estate to enable a party to maintain ejectment against a mere intruder: Wilson v. Fine, 3S Fed. 789; Mickey v. Stratton, 5 Saw. 475; Campbell v. Silver Bow Basin Min. Co. 49 Fed. 47; Oregon Ry. & Nav. Co. v. Hertzberg, 26 Or. 222, 37 Pac. 1019.

The treaty for the purchase of Alaska, after reserving certain lands in fee to the owners and occupants thereof, vests the title to all other lands in the United States. An act of congress provides that no person in the territory shall be disturbed in the possession of any land in his actual use or occupation, but that the terms under which he may acquire title shall be reserved for future legislation by congress. Held, that use and occupation must be deemed a sufficient legal estate and right

to present possession to maintain ejectment against one who enters for the government, and that such possession endures at least until legislation is had: Miller v. Blackett, 47 Fed. 547.

A cotenant can not maintain the action against his cotenant unless the possession is actually and wrongfully withheld from him or his right thereto wholly denied: Goldsmith v. Smith, 21 Fed. 613; nor can cotenants join as plaintiffs in such an action: Minter v. Durham, 13 Or. 481, 11 Pac. 231.

But a tenant in common may recover the entire common property as against a stranger: Dolph v. Barney, 5 Or. 215.

J. S. and A. S., his wife, mortgage the land of A. S. A. S. dies; the mortgage is foreclosed and the land purchased by D. A part of the heirs demise to C. C. pays D. the whole sum and redeems and goes into possession. The grantee of J. S.'s life estate can not prevail in ejectment as against C.'s possessory right accompanying the execution title acquired by D.: Abraham v. Chenoweth, 9 Or. 348.

The person against whom the statute requires the action to be brought must be more than a mere agent or servant, who claims for himself no interest in the premises, or right to the possession or control thereof, but it must be some person in possession exercising acts of ownership and claiming title or right to possession in himself: Morrison v. Holladay, 27 Or. 186, 39 Pac. 1100.

All mining claims, whether quartz or placer, shall be real estate, and the owner of the possessory right thereto shall have a legal estate therein within the meaning of this section: § 3979, post; Lohman v. Helmer, 104 Fed. 182.

The wife is as liable for the unlawful occupation of another's property as the husband is, and, if they are both in the possession, they may be joined as defendants as if they were unmarried: Tilton v. Barrell, 14 Fed. 609.

DEFENSES.-In defense of an action of ejectment by a settler on government lands against a railway company to recover the land whereon the company's road is located. it is competent for the defendant to show that prior to the plaintiff's settlement it complied with the act of congress of March 3, 1875, granting to railroad companies the right of way over public lands; and it is sufficient if, from an inspection and construction of the documents offered in evidence, it appears that such compliance was prior to the settlement, although the exact date does not appear: Frizzelle v. Oregon Ry. & Nav. Co. 22 Or. 463, 30 Pac. 313.

§ 327. Landlord Substituted as Party in Place of Tenant.

A defendant who is in actual possession may, for answer, plead that he is in possession only as tenant of another, naming him and his place of residence, and thereupon the landlord, if he apply therefor, shall be made defendant in place of the tenant, and the action shall proceed in all respects as if originally commenced against him. If the landlord do not apply to be made defendant within the day, the tenant is allowed to answer; thereafter he shall not be allowed to, but he shall be made defendant if the plaintiff require it. If the landlord be made defendant on motion of the plaintiff, he shall be required to appear and answer within ten days from notice of the pendency of the action and the order making him defendant, or such further notice as the court or judge thereof may prescribe. [L. 1862; D. Cd. § 314; H. C. § 317.]

LANDLORD AND TENANT.-A landlord has no right to apply to be made a defendant in an action of ejectment in place of the tenant until the latter files his answer stating that he is in possession only as the tenant of another, naming him and his place of residence: Fitch v. Cornell, 1 Saw. 156; but the tenant has no right, or is not authorized, to say that such other is the

owner of the premises, or to ask that he be substituted as defendant. Having declined the controversy, he should be silent as to the merit or management of it. The landlord may thereupon apply to be made defendant in the case, and if he does not do so he may be made a defendant on motion of the plaintiff: McDonald v. Cooper, 32 Fed. 746.

$328. Complaint, What Must be Set Forth Therein.

The plaintiff in his complaint shall set forth the nature of his estate in the property, whether it be in fee, for life, or for a term of years, and for whose life, or the duration of such term, and that he is entitled to the possession thereof, and that the defendant wrongfully withholds the same from him to his damage, such sum as may be therein claimed. The property shall be described with such certainty as to enable the possession thereof to be delivered if a recovery be had. [L. 1862; D. Cd. § 315; H. C. § 318.]

COMPLAINT IN EJECTMENT. It is only necessary for the plaintiff in an action to recover possession of real property to set forth in his complaint the nature of his estate in the property, whether in fee, for life, or a term of years; if for life, for whose life; if for a term of years, the duration thereof; and to allege that he is entitled to the possession of the property, and that the defendant wrongfully withholds the same from him to his damage in the sum claimed by him. It is necessary to describe the property with sufficient certainty to enable the possession thereof to be delivered in case a recovery be had: Mitchell v. Campbell, 19 Or. 201, 24 Pac. 455. It is necessary that the plaintiff allege that he is entitled to the possession of the property. This section peremptorily makes such allegation material to the plaintiff's cause of action: Bingham v. Kern, 18 Or. 201, 23 Pac. 182; Richards v. Crews, 16 Or. 58, 18 Pac. 925.

If such allegation is omitted, it would be regarded as an action brought under the forcible entry and detainer act: Thompson v. Wolf, 6 Or. 308.

An allegation that the plaintiff is the owner of the land sought to be recovered sufficiently describes the nature of plaintiff's estate to give the court jurisdiction, and to sustain the action, in the absence of a demurrer or other attack upon the complaint before an answer on the merits: Johnson v. Crookshanks, 21 Or. 340, 28 Pac. 78.

Where the only title held is one depending upon the prior possession, the complaint is

sufficient as to its allegation of title which alleges that the plaintiff and his grantor for more than nine years were the owners by right of prior occupancy and actual possession of the land in dispute: Malony v. Agsit, 175 U. S. 289.

It is not necessary, however, for plaintiff to set out his muniments of title: Pease v. Hannah, 3 Or. 301.

A widow entitled to dower which has not been assigned to her may maintain an action at law against the grantee of her husband who denies her right to recover the same. In such action it is not necessary that the complaint, in addition to the allegation that the defendant wrongfully withholds the possession, should allege that the defendant denies plaintiff's right. This may be shown in evidence: McKay v. Freeman, 6 Or. 449.

A complaint to recover possession of a tract lying between the supposed meander line of a lake and the waters thereof, showing that such tract is sufficient in area for the extension of the government surveys over it, but not alleging that the plaintiff is the owner and entitled to the possession thereof, except as owner of the upland abutting thereon, fails sufficiently to set forth the nature of the plaintiff's estate in the land sued for: Little v. Pherson, 35 Or. 51, 56 Pac. 807.

Where both parties derive title from the same persons, neither is at liberty to deny that such person had title: Dolph v. Barney, 5 Or. 191.

§ 329. Defendant's Estate or Right Must be Pleaded, and With What Certainty.

The defendant shall not be allowed to give in evidence any estate in himself, or another in the property, or any license or right to the possession thereof, unless the same be pleaded in his answer. If so pleaded, the nature and duration of such estate, or license or right to the possession, shall be set forth with the certainty and particularity required in a complaint. If the defendant does not defend for the whole of the property, he shall specify for what particular part he does defend. In an action against a tenant the judgment shall be conclusive against a landlord, who has been made defendant in place of the tenant, to the same extent as if the action had been originally commenced against him. [L. 1862; D. Cd. § 316; H. C. § 319.]

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