Oct. 11, 1862, 154. Oct. 21, 1878, §1. Recovery of judgment by plainti 18 Or. 559. and the same proceedings shall be had thereon with the like effect as in case of seizure upon execution. § 157. [155.] If judgment be recovered by the plaintiff, and it shall appear that the property has been attached in the action, and has not been sold as perishable St. 1878, p. 100. property or discharged from the attachment as provided by law, the court shall order and adjudge the property to be sold to satisfy the plaintiff's demands, and if execution issue thereon, the sheriff shall apply the property attached by him, or the proceeds thereof, upon the execution, and if there be any such property or proceeds remaining after satisfying such execution, he shall, upon demand, deliver the same to the defendant. Oct. 11, 1862, 156. Judgment not plaintiff. Sale. The sale here is a sale on execution, and is governed by the provisions therefor in § 292 [289] et seq. An order for sale is no bar to an action for recovery of property exempt from execution and duly claimed as such: Berry v. Charlton, 10 Or. 362. Defendant may pay judgment; but a deposit or payment to the clerk is not payment: Sagely v. Livermore, 45 Cal. 616. Surplus on sale of attached property. -If a creditor of defendant attach the surplus in the sheriff's hands, it seems the sheriff is liable personally only, and his sureties are not: People v. Stewart, 7 Cal. 144. In this case the sheriff had gone out of office before the attachment. When the attachment is satisfied, the property not disposed of, as well as surplus moneys, are subject to the rights of the debtor or his assignee: Sexey v. Adkinson, 40 Id. 408. § 158. [156.] If judgment be not recovered by the plaintiff, all the property attached, or the proceeds recovered by thereof, or the undertaking therefor, shall be returned to the defendant upon his serving upon the sheriff a certified copy of the order discharging the attachment. Defendant, judgment for, ipso facto dissolves attachment: O'Connor v. Blake, 29 Cal. 316. Oct. 11, 1862, $157. Order for erty. 17 Or. 310. § 159. [157.] Whenever the defendant shall have appeared in the action he may apply upon notice to the return of prop plaintiff to the court or judge where the action is pending, or to the clerk of such court, for an order to discharge the attachment upon the execution of the undertaking mentioned in the next section; and if the application be allowed, all the proceeds of sales, and property remaining in his hands, shall be released from the attachment and delivered to the defendant upon his serving a certified copy of the order on the sheriff. Bond for discharge of attachment. The bond or undertaking by defendant under this section operates as an absolute discharge of the property from attachment: Duncan v. Thomas, 1 Or. 314; the bond taking the place of the property, and the action losing its character as one in Oct. 11, 1862, $158. Undertaking § 160. [158.] Upon such application, the defendant oct. 11, 1862, shall deliver to the court or judge to whom the application is made an undertaking executed by one or more therefor. sureties, resident householders or freeholders of this state, to the effect that the sureties will pay to the plaintiff the amount of the judgment that may be recovered against the defendant in the action. If the plaintiff demand it, the sureties shall be required to justify in the same manner as bail upon an arrest. Form of undertaking. It has been held that a common-law bond embracing the requisite conditions is sufficient: Curiac v. Packard, 29 Cal. 194; Cook v. Boyd, 16 B. Mon. 556. The only remedy, if the bond is in sufficient, is to have the property re- Justification of sureties: See Motion to § 161. [159.] The defendant may, at any time before Oct. 11, 1862, judgment, except where the cause of attachment and the $159. cause of action are the same, apply to the court or judge discharge thereof, where the action is pending, to discharge the attachment, in the manner and with the effect as provided 8 or. 25. in sections 130 [128] and 131 [129] for the discharge of a defendant from arrest. the attachment. 8 Or. 234. $160. When writ to the be returned. 12 Or. 432. § 162. [160.] When the writ of attachment shall be Oct. 11, 1862, fully executed or discharged, the sheriff shall return same, with his proceedings indorsed thereon, to clerk of the court where the action was commenced. Return. The statute contains no express provision requiring that all the acts necessary to a valid levy shall be set out in the return: Ritter v. Scannell, 11 Cal. 238. But it is the duty of the sheriff to set them out: Sharp v. Baird, 43 Id. 577. The return is not conclusive, but 13 Or. 360. is prima facie evidence of the facts stated: Nichols v. Patten, 18 Me 231; S. C., 36 Am. Dec. 713; Palmer v. Thayer, 28 Conn. 237; Pomroy v. Parmlee, 9 Iowa, 140. 161. Order upon § 163. [161.] The order provided for in section 152 Oct. 11, 1862, [150] shall require such person or officer to appear before such court or judge at a time and place therein stated. garnishee. In the proceedings thereafter upon such order, such per- 13 Or. 490. son or association or corporation shall be known as the i8 Or. 559. garnishee. Oct. 11, 1862, $162. Interrogations 12 Or. 500. 16 Or. 331. 16 Or. 539. § 164. [162.] After the allowance of the order, and before such garnishee or officer thereof shall be thereby to garnishee. 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 149 [147], and to which such garnishee or officer thereof is required to give a certificate as provided in section 152 [150]. Oct. 11, 1862, $163. Answer of garnishee. 12 Or. 500. 14 Or. 404. Oct. 11, 1862, $161. Garnishee may to answer. § 165. [163]. 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. Answer of garnishee. An an- garnishee is authorized: Faull v. swer is required; no demurrer by the Alaska G. & S. M. Co., 8 Saw. 420. § 166. [164.] If the garnishee or officer thereof fail to answer, the court or judge thereof, on motion of the be compelled 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 judg ment be given against the garnishee for a greater amount than the judgment against the defendant in the action. Oct. 11, 1862, $165. Exceptions to answer. Oct. 11, 1862, $166. Reply to answer. § 167. [165.] 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. § 168. [166.] 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. $166. as ordinary issues of fact between plaintiff and defend- Oct. 11, 1862, ant. If the answer be not excepted or replied to, within the time prescribed or allowed, it shall be taken to be answer. true and sufficient. Reply to 16 Or. 333. 167. Judgment garnishee. § 169. [167.] If by the answer it shall appear, or if oct. 11, 1862, upon trial it shall be found, that the garnishee, at the time of the service upon him or the officer thereof of against 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 149 [147], and as to which such garnishee or officer thereof is required to give a certificate as provided in section 152 [150], 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. 168. garnishee. § 170. [168.] Executions may issue upon judgments Oct. 11, 1862, against a garnishee as upon ordinary judgments between Execution plaintiff and defendant, and costs and disbursements against 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. 169. Restraining garnishee. § 171. [169.] The court or judge thereof in its dis- Oct. 11, 1862, cretion may, at the time of the application of the plaintiff for the order provided for in section 152 [150], and order against 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. $170. § 172. [170.] The proceedings provided for in titles Oct. 11, 1862, XIII., XIV., and XV. shall be known as provisional Provisional remedies. remedies. CHAPTER II. OF ISSUES, TRIAL, AND JUDGMENT IN CIVIL ACTIONS. TITLE I. OF ISSUES, AND THE MODE OF TRIAL. X. OF JUDGMENT IN GENERAL. OF JUDGMENT OF NONSUIT. XII. OF JUDGMENT ON FAILURE TO ANSWER. Oct. 11, 1862, Ø 171. § 176. § 177. § 178. Issues, how tried. When both issue of law and fact arise, issue of law to be first tried. § 179. Motion to postpone trial on account of absent evidence. § 173. [171.] Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one kinds of issues. party and controverted by the other. They are of two Different kinds, |