specially concurring.
While I agree that plaintiff cannot prevail against the county or Baumgartner, I disagree with part of the rationale of the majority opinion.
My chief objection is that I do not believe that plaintiffs claim is subject to the provisions of the Oregon Tort Claims Act. A suit to foreclose a security interest in a motor vehicle is not a tort action contemplated by the Act, and therefore does not come within *558its notice requirement. The fact that the vehicle was held by a county officer, namely, the sheriff, under color of law, would not in my view have the effect of imposing upon the security interest holder a requirement of complying with that Act before bringing his foreclosure suit.
The central purpose of the Tort Claims Act in waiving governmental immunity was to give an aggrieved citizen a remedy against a governmental body which was not theretofore available to him. See Feres v. United States, 340 US 135, 71 S Ct 153, 95 L Ed 152 (1950); Lansing, The King Can Do Wrong! The Oregon Tort Claims Act, 47 Or L Rev 357 et seq (1968). A right of suit or action such as involved here, however, did not come into being with the passage of the Tort Claims Act. ORS 203.010 early on provided that counties may sue and be sued in regard to matters pertaining to their rights and duties as a corporate body. Grant County v. Lake County, 17 Or 453, 21 P 447 (1889). Further, the fact that after the sheriffs sale involved here there was added to plaintiffs complaint a request for a money judgment in the alternative in the event that return of the vehicle could not be had, would not have the effect of transforming the original suit into a tort claims action.
On a different issue, it is my view that plaintiff cannot prevail for the further reason that he failed to follow the prescribed statutory procedure for asserting his claim. Although plaintiff had been informed by county counsel in June 1975 that the sheriff was holding the vehicle subject to both the criminal proceedings and Dobrinski’s execution, and although the county gave proper public notice of the execution sale, plaintiff filed no claim with the sheriff pursuant to ORS 23.320.1 Certainly it could not be successfully *559argued that a claimant under this section would first have to file a notice under the Tort Claims Act. This is, however, exactly where the majority’s conclusion on the first point discussed above leads us.
ORS 23.320 provides:
"When personal property is seized by virtue of any execution, and any person other than the defendant claims such property, or any part thereof, and gives notice thereof in writing, the sheriff may summon *559from his county six persons, qualified as jurors between the parties, to tiy the validity of the claim, giving five days’ notice of the time and place of the trial to the plaintiff in the execution or his attorney; or the adverse claimant may, at his option, have his claim adjudicated in a summary manner in the court out of which the execution issued, by affidavit, by oral testimony in open court or otherwise, as the court may determine.”