State Ex Rel. Scott v. Dobson , 171 Or. 492 ( 1943 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The alternative writ alleges the official position of defendant Dobson; that the relator Eueidas K. Scott was and is the owner and holder of a judgment against defendant Platt, in the sum of $3,500, and interest thereon at the rate of 6 1/4 per cent per annum from January 1, 1932, and for $31.00 costs and disbursements duly entered in the circuit court of the state of Oregon for Multnomah county on the 8th day of January, 1942; that execution had been issued thereon and returned unsatisfied in whole or in part; that on or about the 9th day of March, 1942, said relator caused to be filed in said circuit court an affidavit in substance that said relator had said judgment; that execution had been issued thereon; that no part thereof had been paid, collected or secured; and that the said relator believed that said Platt had property liable to execution which he refused to apply toward the satisfaction of said judgment or to disclose its whereabouts to the officers having in their hands the writ of execution.

It is also alleged in said alternative writ that said defendant Dobson, as circuit judge, issued an order directing said Platt to appear before said circuit judge upon the 16th day of March, 1942, at the hour of 2 o'clock p.m., and then and there answer under oath concerning any property or interest in any property that said Platt might have or claim, and that by said order said Platt was enjoined and restrained from transferring any money, property or shares or stock or securities in his possession or under his control.

The final paragraph of the allegations set forth in said alternative writ is as follows:

"That on Monday, March 16, 1942, at the hour of 9:30 o'clock A.M. on said day, said Honorable Alfred P. Dobson, the respondent herein, as Judge of the Circuit Court of the State of Oregon, for the county of Multnomah, disregarding the rights of the Petitioner herein to pursue the remedies by law provided, directing the appearance of said judgment debtor, Robert Treat Platt, to appear and answer under oath regarding any property or interest in any property he may have in his possession or under his control, peremptorily issued an order recalling, vacating and setting aside said described and mentioned order wherein said Robert Treat Platt, judgment debtor had been ordered to make his appearance, as aforesaid, and did set aside and vacate said order and has absolutely refused to require the said Robert Treat Platt, Judgment debtor, by an order, to make his personal appearance and answer under oath as by law provided, concerning any property or interest in any property that he may have in his possession or under his control before the said circuit court or judge, or before a referee appointed by such judge or court, the time and place to be specified." (Italics ours.)

A demurrer was interposed to the alternative writ on the ground that it did not state facts sufficient to warrant the issuance of the writ. In support of the demurrer, the defendant Dobson contends: (1) That the order of vacation is appealable and that the relator has a plain, speedy and adequate remedy at law; (2) that mandamus will not lie to control the discretion of a court or judge as to whether an order of examination of a judgment debtor be made; (3) that the court has inherent power to vacate such order during term time.

The demurrer admits the truth of the material recitals in the alternative writ, viz., that, in the circuit court for Multnomah county, the relator obtained a judgment against Robert Treat Platt in the sum of $3,500, together with interest thereon; that execution was issued and returned unsatisfied; that no part of the judgment had been paid; that relator believed the judgment debtor had property subject to execution; and, that defendant Dobson has absolutely refused to order an examination of the judgment debtor.

The pertinent parts of the statute regulating proceedings supplementary to execution are: Section 6-1701 O.C.L.A., which provides:

"After the issuing of an execution against property, and upon filing by the plaintiff, or some one on his behalf, of an affidavit stating in general terms that the plaintiff believes that the judgment debtor has property liable to execution which he refuses to apply toward the satisfaction of the judgment, such court or judge may, in its discretion, by an order, require the judgment debtor to appear and answer under oath concerning any property or interest in any property that he may have or claim, before such court or judge, or before a referee appointed by such judge or court, at a time and place specified in the order. * * * * * *";

Section 6-1702 O.C.L.A., in reference to examination of the judgment debtor:

"On the appearance of the judgment debtor, he may be examined on oath concerning his property. His examination, if required by the plaintiff in the writ, shall be reduced to writing, and filed with the clerk by whom the execution was issued. Either party may examine witnesses in his behalf, and if by such examination it appear that the judgment debtor has any property liable to execution, the court or judge before whom the proceeding takes place, or to whom the report of the referee is made, shall make an order requiring the judgment debtor to apply the same in satisfaction of the judgment, or that such property be levied on, by execution, in the manner and with the effect as provided in this title, or both, as may seem most likely to effect the object of this proceeding."

The order of vacation has been treated in the briefs as amounting to a refusal of the defendant circuit judge to order an examination of the judgment debtor and it will be so considered here.

It is fundamental that relator is not entitled to the remedy of mandamus unless he has a clear legal right to the performance of the particular duty sought to be enforced and there is no other plain, speedy, and adequate remedy available to obtain the relief to which he is entitled. It is also well settled that the mere fact that such order of vacation is appealable does not necessarily preclude the issuance of the writ. If mandamus is the more efficient, speedy, and adequate remedy, the court, in the exercise of sound judicial discretion, may grant such relief notwithstanding the right of appeal.

As was said in State ex rel. Pierce v. Slusher, 117 Or. 498,244 P. 540, 58 A.L.R. 114:

"We must concede it to be a fundamental principle that mandamus will not lie where there is a plain, speedy and adequate remedy in the ordinary course of law: Section 613 Or. L. However, such remedy, to prevent the execution of the writ, must be ``adequate' to afford the relief to which the relator is entitled. Moreover, the writ may issue even where other remedies exist, if they are not sufficiently speedy to prevent material injury: 2 Bailey on Habeas Corpus, ``Mandamus' 830."

In 38 C.J. 561, the same principle is thus stated:

"The mere fact that there is another remedy will not prevent the issuance of the writ of mandamus if the other remedy is not adequate, and where it is doubtful whether or not there is an adequate specific remedy in the ordinary course of law, mandamus will ordinarily issue."

It appears from the record that relator has a clear legal right to the performance by defendant of the particular duty sought to be enforced, viz., the granting of an order of examination. Mandamus is particularly adapted as it affords relator a simple, inexpensive and expeditious method of relief. If an appeal had been taken from the order vacating an order fixing the time of hearing, and this court had reversed it and remanded the cause with directions to re-instate the order, the plaintiff could not obtain complete relief since the time of hearing has long since expired. On appeal this court would not direct the lower court to hear and determine the matter at issue. Mandamus, however, would afford complete and adequate relief. Furthermore, under this record, on appeal the circuit judge would have no opportunity to show any reason for vacation of the order and his refusal to require examination of the debtor. It certainly is not an appropriate remedy from the viewpoint of the defendant court or judge. Neither is appeal an adequate remedy to the judgment creditor.

The office of mandamus is to execute — not adjudicate. The writ merely commands a hearing and determination by defendant as to whether the debtor owns property which could be applied in satisfaction of the judgment. The decision of such issue is a judicial function which the writ does not seek to control.

That mandamus has heretofore been considered a particularly appropriate remedy to compel performance of a legal duty by some officer whose duty it was to act, see: State ex rel. Pierce v.Slusher, supra; Riesland v. Bailey, 146 Or. 574,31 P.2d 183, 92 A.L.R. 1207; State ex rel. v. Kanzler, 129 Or. 85,276 P. 273. As said in 35 Am. Jur., p. 32, § 261:

"When the court's duty is so plain in point of law and so clear in matter of fact that no element of discretion is left as to the precise mode of its performance and only one course is open to it, such duty is ministerial, and as such enforceable by mandamus, in the same manner and to the same extent as ministerial duties of other public officers."

The trial court had no judicial discretion to exercise as to whether the order of examination should be made. There was no dispute as to the facts. The judgment creditor's affidavit contained all the averments required by § 6-1701, O.C.L.A. to obtain an order of examination and he was entitled to the same as a matter of law. No judicial discretion could have been involved when there was only one legal deduction that could have been made, viz., that the relator was entitled to inquire as to whether the judgment debtor had property subject to execution. There is nothing in the above sections of the statute concerning proceedings supplementary to execution to indicate that it was the intention of the legislature to vest a judge or court with authority to arbitrarily or capriciously refuse to grant an order of examination when the judgment creditor has done everything required by the statute to entitle him to such order. Can it be that, on the same state of facts, the court could, in the exercise of its discretion, grant relief to A and deny it to B? We think it was not the intention of the legislature in such proceedings to authorize a court or judge thus to act in an arbitrary or capricious manner.

In 33 C.J.S. 676, it is stated:

"It is generally held that the judge has no discretion to refuse the order where the facts required by the statute are properly shown. He is without the right to insist on additional facts or to impose other or further terms as a condition of its issuance. A second order will not be granted as of course, but only in the sound discretion of the judge on a sufficient showing by affidavit."

The rule is thus stated in 35 Am. Jur. p. 31, § 259:

"The rule denying mandamus with respect to judicial duties of a discretionary character is not without limitation. If the action of the court or judge in a matter calling for the exercise of discretion is such as to amount to an abuse of discretion and to manifest a disregard of duty, thus being without semblance of legal power, and it appears that there is no remedy by appeal or error, or that such remedy, if existing, is entirely inadequate, and the exigency is such as to justify the interposition of the extraordinary superintending power of the higher court, mandamus will issue to compel the specific action which should have been taken. Thus, the lower court or judge may be compelled to act in a particular way when the facts are not in dispute and the court has come to a wrong conclusion of law therefrom, or disregarded a duty expressly enjoined by law under the undisputed facts. It may be said that the question whether an inferior tribunal has acted within the scope of its authority may generally be determined in mandamus."

If any discretion was vested in the judge or court with regard to ordering the examination of the debtor and we think there was none — the refusal so to act was an abuse thereof.

It was not intended to permit a debtor to be harassed and annoyed by unnecessary or unreasonable examinations: 33 C.J.S. 658. Hence, § 6-1701, O.C.L.A. vested discretion in the "judge or court" to prevent such abuse. There are numerous instances wherein the granting of an order of examination would rest within the sound legal discretion of the court or judge, but none are involved herein and we are concerned only with an issue of law arising from the demurrer to the alternative writ. It may be that the defendant has some good and sufficient reason for the vacation of the order but it does not appear of record and it may be shown by answer. It was not incumbent upon the judgment creditor to show by affidavit that no previous application for examination had been made: 33 C.J.S. 671. Neither was he required to negative any reason that the defendant might have had for refusal to require the examination.

We see no merit in the contention that the court had the authority to vacate the order because it was made during term time. While courts have control over their entries during the term and may correct or modify them in the exercise of a sound judicial discretion, the record herein does not present that situation: Sam Savin, Inc., v. Burdsal, 61 Ohio App. 539,22 N.E.2d 914. Here, the order was not vacated in the exercise of discretion, but for the purpose of refusing the relator a remedy to which he was legally entitled.

This court, in the exercise of its discretion, assumed original jurisdiction of the cause by issuing an alternative writ. If the petition for such writ had been denied, the relator would then have had ample time in which to appeal. Now that the time for appeal has expired, it ill behooves this court to deny relator relief on a doubtful procedural question.

It is certainly not the intention of the court to cast any aspersions upon the defendant circuit judge or the judgment debtor and we think there is no reasonable ground for such an inference. We are not concerned with the motives of either party. It is also beside the point that the judgment debtor is a lawyer of high professional standing. There is no reason why a court should protect him or any other judgment debtor from disclosing ownership of property which might be applied in satisfaction of a judgment. It ought to be apparent that the sole issue before the court is a question of law presented by the demurrer to the alternative writ.

The mere fact that an appeal from the judgment is pending does not deprive a judgment creditor of his right under the statute to examine the judgment debtor, and it is not so contended by defendant. As said in 33 C.J.S. 660:

"The proceedings will not be stayed * * * because an appeal has been taken from the judgment."

The demurrer to the alternative writ is overruled and the defendant Dobson allowed ten days in which to answer if he sees fit to do so. Upon failure to answer, a peremptory writ will issue.