Marks v. Willis , 36 Or. 1 ( 1899 )

Mr. Justice Bean,

after stating the facts, delivered the opinion of the court.

1. It is first claimed that the plaintiff’s remedy was by a motion in the court issuing the execution to quash or recall it, and not by injunction. The mere improper issuance of an execution is ordinarily no ground for equitable interference, but any irregularity in that regard must be corrected by the court issuing the writ: Gregory v. Ford, 14 Cal. 138. But, as we understand it, this suit is not based on a mere irregularity in the form of the execution, nor in the manner of its issuance, although questions of that kind are argued in the briefs. It is substantially a suit to enjoin the enforcement of an alternative money judgment in an action for the recovery of personal property after a tender of the property described in the judgment, and an injunction is a proper remedy in such case : McClellan v. Marshall, 19 Iowa, 561 (87 Am. Dec. 454); 1 High, Inj. § 139 ; 1 Beach, Inj. § 625.

2. Passing over, therefore, any questions as to the form of the writ or its regularity, and coming directly to the merits of the controversy, we are agreed that the decree of the court below must be affirmed. The judgment upon which the execution was issued is the ordinary judgment in an action of replevin for the return of the property sued for, or, in default thereof, for its value, and the defendant had a right to discharge it by a return of such property within a reasonable time, and he could be compelled to pay its value only in case a delivery could not be had : Wells, Repl. § 778 ; 2 Freeman, Ex. § 468 ; Etchepare v. Aguirre, 91 Cal. 288 (25 Am. St. Rep. 180, 27 Pac. 668); Meads v. Lasar, 92 Cal. 221 (28 Pac. 935); Carson v. Applegarth, 6 Nev. 187. When, therefore, Marks tendered and offered to return the property within five days after the litigation had ended, and before any levy had been made under the writ, it operated as a satisfaction of the judgment, and thereafter no proceedings could legally be had for enforcing, by execution, the alternative judgment for money.

3. Nor is the fact that the first execution was returned unsatisfied because, as the sheriff certifies, he was unable to obtain the property described therein, of any consequence in this connection. We are not dealing with the effect of proceedings under the first writ. Its return unsatisfied did not change the form or character of the judgment, nor authorize or justify the issuance of an alias writ in any form other than that prescribed by statute. An execution must follow the judgment, and, under the statute, there is but one form of execution on a judgment in an action of replevin (Hill’s Ann. Laws, § 276, subd. 4) ; and it is satisfied, so far as the subject-matter of the litigation is concerned, by a delivery to the officer of the property described in the writ. If, under such an execution, the officer is unable to obtain possession of the property described therein, he may proceed under the same execution to enforce the alternative judgment, and his return would probably be conclusive between the parties, and not subject to collateral attack : Irvin v. Smith, 66 Wis. 113 (27 N. W. 35, 28 N. W. 351). But no attempt was made to enforce the first execution, and when it was returned unsatisfied it ceased to perform any office in the case except as the basis of the subsequent issuance of an alias writ. It follows that the decree of the court below must be affirmed, and it is so ordered. Affirmed.