Demurrer to defendant Dobson's answer sustained May 18, 1943 ON DEMURRER TO ANSWER (137 P.2d 825) In the original opinion in this mandamus proceeding — Stateex. rel. Scott v. Dobson — a demurrer to the alternative writ was overruled and the defendant circuit judge was permitted to file an answer showing whether he had "some good and sufficient reason for the vacating of the order" directing the examination of the judgment debtor, Robert Treat Platt.
The answer has been filed and the demurrer thereto presents the question as to whether there is any legal justification for refusing to order the examination. In the answer it is admitted that the judgment referred to in the writ was obtained against Mr. Platt and that execution had been issued and returned unsatisfied in whole or in part.
As an affirmative answer, the defendant alleges:
I.
*Page 516"That immediately prior to the 9th day of March, 1942, in that certain action wherein Eueidas K. Scott is plaintiff, and Robert Treat Platt and Harrison G. Platt are defendants, Clerk's Registry No. 140-942 in the Circuit Court of the State of Oregon for the county of Multnomah, the plaintiff caused to be issued and served upon the United States National Corporation and The United States National Bank of Portland (Oregon), writs of execution and notices of garnishment wherein and whereby the property, if any, belonging to the defendant, Robert Treat Platt and in possession of said garnishees was subject to garnishment; that thereafter and before the 9th day of March, 1942 said garnishees filed their respective returns on said notices of garnishment.
II.
"That on the 9th day of March, 1942 the plaintiff in the action referred to in the preceding paragraph caused a writ of execution and notice of garnishment to be served upon the various members of Platt, Henderson, Warner Cram, a copartnership, whereby the plaintiff in said action sought to levy upon property, if any, belonging to said Robert Treat Platt in the possession of said copartnership.
III.
That on the 9th day of March, 1942 plaintiff in the action referred to in paragraph I hereof, through his counsel moved the court presided over by the defendant, for an order requiring the appearance of Robert Treat Platt for examination supplemental to execution; that at said time defendant herein was not informed of the garnishment proceedings or of the nature of the judgment and signed an order directing said Robert Treat Platt to appear and be examined on the 16th day of March, 1942 at the hour of two o'clock in the afternoon of said day.
IV.
"That thereafter and on the 11th day of March, 1942 Robert Treat Platt filed a motion to vacate the order referred to in the preceding paragraph; that the basis of said motion was that the judgment was predicated upon an action for four bonds totalling $3500.00 and that such bonds were part of an aggregate issue of $175,000.00 of which there were then outstanding approximately $143,800.00 and that the said Robert Treat Platt had appealed from said judgment in good faith and it was further set out in said motion that the trust deed or mortgage supporting said bond read in part as follows:
`No holder of any bond or coupon secured hereby shall have the right to institute any suit, action or proceeding either at law or in equity for the foreclosure of this instrument, or for *Page 517 the execution of any trust or power hereunder, or for the appointment of a receiver to take possession of the properties embraced hereby, or for any other remedy whatsoever, unless * * *'
V.
"That thereafter and on the 16th day of March, 1942 at the hour of 9:30 o'clock A.M. the aforesaid motion came on for hearing; that during the argument on the motion it developed that in addition to the reasons given in the foregoing motion as filed, the notice of garnishments heretofore referred to and the returns thereof had been made and it further appeared that plaintiff in the aforesaid action had caused subpoenas duces tecum to be served upon Paul S. Dick, President of The United States National Bank of Portland (Oregon) and Caroline Buckingham, Wilber Henderson, Harold J. Warner, and Edward T. Cram, requiring each of said parties to appear with certain books, papers and documents at the hour of two o'clock in the afternoon of March 16, 1942 or at the time fixed for the hearing on the supplemental orders aforesaid; it further appeared that this device was resorted to in lieu of the statutory proceeding for examining into the returns of garnishees by allegations and interrogatories.
VI.
"That upon the hearing of said motion defendant assumed that a court in term time had the same authority to vacate an order that it would have had to make it originally; that Sec. 6-1701 O.C.L.A. provides that upon the application for an order supplemental to execution the court or judge may in its discretion require the judgment debtor to appear and answer under oath concerning any property or interest in any property he may have; that at that time defendant assumed that the Legislature had full power to fix *Page 518 the conditions upon which any statutory order might be made of the same force and dignity as the provision for the order itself and since said statutory provision specifically reposes in the judge the discretion to issue or withhold said order and not at any time considering that the issuance of such order was a matter of right in the plaintiff but a right subject at all times to the discretion of the court, and it appearing to the court that the plaintiff in said action by the order and subpoena duces tecum which he had caused to be served upon the garnishees named, resorted to such procedure to avoid taking the statutory proceedings provided for litigants dissatisfied with returns on garnishments, that is by allegations and interrogatories, and otherwise believing the original order was improvidently and improperly issued under the circumstances, and further believing that there was reasonable doubt as to the validity of the judgment in said action, and acting solely upon the statutory authority and the discretion vested in the court by Sec. 6-1701 O.C.L.A. and not otherwise, defendant vacated the order of March 9th whereby Robert Treat Platt had been directed to appear on the 16th day of March, 1942 for examination supplemental to execution."
It is observed from the above answer that defendant seeks to justify the vacation of the order principally upon the ground that, at the time of ordering the examination of the judgment debtor, he was "not informed of the garnishment proceedings or the nature of the judgment." There is no direct and specific averment as to the return of the garnishees, but we think it is a fair inference from the pleading that the returns were not satisfactory and that plaintiff, instead of following the statutory procedure of "allegation and interrogatories" in reference to the returns of garnishees, resorted to the "device" of proceedings *Page 519 supplementary to execution. If, in fact, the return had been satisfactory, i.e., there was sufficient property of the debtor in possession of the garnishees to satisfy the judgment, there would be no necessity to vex or annoy the judgment debtor by requiring him to submit to examination. If the garnishees had admitted having property in their possession belonging to the judgment debtor sufficient to satisfy the judgment, there would be no occasion for this lawsuit. However, the pleading does not present such situation for it affirmatively appears therefrom that the garnishment proceedings were an inadequate remedy. It is a case wherein the defendant says that inquiry concerning the ownership of any property of the judgment debtor should be directed to third persons and not to the person against whom the judgment has been obtained. That the returns show no funds or property of the judgment debtor in the hands of the garnishees certainly does not preclude the judgment creditor from inquiring of the debtor himself about his ownership of property. The circuit judge has no legal discretion to say to the judgment creditor — where there has been no abuse of process — "You must direct your inquiry to third persons, but not to the person who owes the debt."
The allegations in reference to the bond issue which was the basis of a judgment against the defendant Platt are not material in this proceeding. The purpose of supplementary proceedings to execution is to ascertain whether the judgment debtor owns property which can be applied in satisfaction of the judgment. It is not to test the validity of the judgment. In such proceedings the issues in the original action are not a proper subject of inquiry. As said in Fiero on Particular *Page 520 Actions and Proceedings (4th Ed.) Article VI (E), p. 3296:
"* * * The regularity of the judgment cannot be questioned in these proceedings. Nor can the validity of the execution be questioned. If the execution is voidable, the question must be raised in a direct proceeding for that purpose. * * *"
Also, to the same effect, see 21 Am. Jur. 320, Executions § 674; Wait's Manual of Supplementary Proceedings and Garnishee Executions, Article III, § 1, p. 310. There is no contention here that the judgment is void for lack of jurisdiction.
Neither is it any ground for vacation of the order that an appeal to this court was pending from the judgment: 33 C.J.S. 681, Executions § 368. Suffice it to say it was a valid judgment (see Scott v. Platt, supra, upon which execution could and did issue. Therefore, supplementary proceedings were in order.
The law applicable to the other grounds for vacation referred to in the answer is discussed in the original opinion on demurrer to the alternative writ. We see no need of repetition.
Summarizing, we have before us a case wherein it is admitted that a judgment has been obtained against Robert Treat Platt and that execution has been issued and returned unsatisfied. There is no showing of any abuse of process. The judgment debtor has not been annoyed or harassed by unnecessary or frequent examinations. The judgment upon which execution was issued is valid. The returns in the garnishment proceedings were unsatisfactory and afforded no adequate remedy to the judgment creditor. The pleadings show a compliance by the judgment creditor with the statutory provisions relative to supplementary *Page 521 proceedings. The answer fails to disclose any legal justification for the vacation of the order requiring examination of the judgment debtor. We think the plaintiff was entitled as a matter of law to the relief sought and that no exercise of legal discretion was involved in the vacation of the order.
It follows that the demurrer to the answer is sustained and peremptory writ will issue.
KELLY, J., dissents. *Page 522