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(13 Or. 369)
(Supreme Court of Oregon. April 26, 1886.) ATTACHMENT-PRIORITY OF LIEN-PROMISSORY NOTES.
Where both the appellants and the respondents procured writs of attachment on promissory notes held by a bank as collateral security for overdrafts drawn upon it by a bank which had failed, the respondents, having first procured their writ, were granted priority of lien, notwithstanding the fact that their original complaint alleged an action of tort in connection with contract; and in their amended complaint the amount claimed in the original complaint, which the attachment was sued out to secure, was enlarged; the facts of the case showing a distinct cause of action on contract, and that the amendment was made in furtherance of justice and
without fraudulent intent. Appeal from Multnomah county.
F. V. Holman, for appellants, Bank of Garfield Co. and others. C. H. Carey, for respondents, William Bingham and others.
THAYER, J. The appellant Suksdorf commenced a suit in the court below against the respondents to have certain attachment proceedings taken by the latter against J. S. Danford and I). Ainsworth, partners under the name of Spokane County Bank, declared fraudulent and void, and to have attachment proceedings he had taken against said parties decreed to have priority over those of the respondents. It appears that the said Danford and Ainsworth, who evidently are a couple of knaves, engaged in the banking business at Spokane Falls, in Washington Territory, and received deposits, discounted notes, and dealt in exchange; that about the seventeenth day of September, 1884, they failed in business, having at the time a large number of promissory notes in the possession of the First National Bank of Portland, Oregon, which were held by the latter bank as collateral security for overdrafts drawn upon it by said Danford and Ainsworth; that on the twentieth day of September, 1884, the respondent Bingham commenced an action in the said circuit court against Danford and Ainsworth to recover various claims on account of certain moneys deposited with them by divers parties which had been assigned to him, said Bingham, and thereupon filed an atislavit and undertaking for the purpose of procuring a writ of attachment to be issued in the said action, and which was thereupon issued by the clerk of said court, and under which said notes were attached; that subsequently to the commencement of the said action, and on the same day it was commenced, the respondents Webber & Foster also commenced an action in the said circuit court against said Danford and Ainsworth on account of moneys deposited by the former with the latter, and also procured a writ of attachment to be issued in their action, under which said notes were also attached. Subsequently, and on or about the sixth day of October, 1884, said appellant commenced an action against Danford and Ainsworth in said circuit court on account of moneys he had deposited with them, and in which he sued out an attachment under which said notes were also attached. The suit was in the nature of a creditors' bill, and was brought on behalf of himself and all others in the same interest who would come in and contribute to the expense of maintaining it, and subsequently the Bank of Garfield County and one F. Yandell, who had similar claims against said Danford and Ainsworth, and who had commenced actions thereon in said circuit court, respectively, and sued out attachments therein, which were also levied upon said notes, came in and were made plaintiffs with said Suksdorf. The attachments in favor of the appellants and Yandell were subsequent to those of the respondents. The respondents filed answers in said suit, and upon the hearing thereof the circuit court disinissed the complaint, and from the decree entered thereon this appeal is brought. The said Yandeil did not, however, join in the appeal.
The appellants claim that the respondents were not entitled to have attachments issued in their said actions, for the reason that said actions were in tort, and not upon contract, and that their procurement of said attachment to be issued was a fraud on the appellants' rights in the premises. No attachment against the property of another can legally issue in this state in any action except an action upon contract, expressed or implied, for the direct payment of money, and an attempt to procure the issuance of such process in any other kind of action is unauthorized, and the process, if issued, would be a nullity.
But the respondents' counsel claims that their said actions were not in tort, that they were upon contract, and that they were entitled, under the law, to have attachments issued therein. Under the Civil Code of this state there are no forms of action in actions at law. It expressly abolishes the:n. Their nature and character must therefore be ascertained from an examination of the facts alleged constituting the cause. The original complaint in Bingham's action is not a comely pleading, certainly. It would be difficult to describe its quality. The first count, which is more objectionable than any of the others, alleges, after the introductory part, the following: “And that on the twenty-sixth day of August, 1884, one John Bingham deposited with the defendants $100, to be sent to Sea-board Bank, New York, and $250, to be sent to First National Bank of Portland, Oregon, and that the defendants failed to send said suns to said Sea-board Bank of N. Y., and to the First National Bank of Portland, but converted the same to their own use, to plaintiff's damage in the sum of $350.” It is not easy to decipher what the pleader intended by this. The appellants' counsel insisted that his intention was to claim for a tortious conversion of the money; and that, possibly, may have been his idea. It is ditlicult to conclude what an attorney might mean when he employs such a jargon to express it. There is no possible way of reconciling his statement if the several allegations contained in it are given the full meaning which each imports if separately considered. Depositing the money with a bank to be sent to another bank implies a purchase of exchange. No one would suppose for a moment that the deposit was made with the view that the identical money would be forwarded. The deposit itself would operate to transfer the particular money to the bank, and create the relation of debtor and creditor between it and the depositor, and the alleged breach “that the defendants failed to send said sums” signifies that it was the amount of money deposited, and not the same money that was to be sent. The language is vague and very meager; but, standing by itself and in the light of its surroundings, I think it imports a contract to pay a sum of money in con