Glenn v. Brush

Decision Date01 February 1876
PartiesGLENN v. BRUSH.
CourtColorado Supreme Court

Error to the District Court of Arapahoe County.

THIS was an action of replevin, brought in August, 1871, by Lockhart T. Glenn and George O. Talpey against Jared L Brush, sheriff, in the Weld county district court, to recover possession of a herd of Texas cattle, numbering between seven hundred and eight hundred head, a number of calves, being the increase of the herd, six horses, two yoke of work oxen, a wagon, etc.

This property had been seized upon and detained on a writ of attachment issued out of the Weld county district court, on the 22d day of September, 1870, at the suit of J. W. Doane et al. v. Oliver S. Glenn and Rufus E. Talpey.

Lockhart T. Glenn and George O. Talpey, who claimed to be the owners of the property, and in whose possession it was at the time of the levy of the attachment writ, filed their interplea under the statute, and demanded a trial of the right of property. Issue was joined on the interplea, and by consent the cause was brought to Arapahoe county, tried at the regular June term, 1871, of the district court; the trial resulted in a verdict for the interpleaders-the plaintiffs in this case-and the court rendered judgment on the verdict.

On the 25th of August, 1871, the plaintiffs sued out their writ of replevin, having made demand of Brush, and served him with notice of the judgment. The writ was served upon Brush August 28th, 1871, and on the 30th day of August, 1871, the coroner, who had the writ to execute, obtained possession of the property and turned it over to the plaintiffs, Lockhart T. Glenn and George O. Talpey.

In the meantime, that is, on the 29th of August, the attorneys for Doane et al. placed in the hands of Brush another attachment writ at the suit of J. V. Farwell et al. v. Oliver S. Glenn and Rufus E. Talpey. This writ Brush assumed to execute by levy upon this same property, which had already been adjudged in the plaintiffs in this suit, and after service upon him (Brush) of the replevin writ.

The declaration in replevin contained two counts,-in the cepit and detinet.

The defendant pleaded: First,-non cepit; Second,-non detinet Third,-Actio non, because, he says that heretofore, to wit: on the 23d day of September, in the year of our Lord one thousand eight hundred and seventy-one, Hugh T. Munson was the sheriff of the said county of Weld and Territory of Colorado, and that on the day and year last aforesaid, a writ of attachment came into the hands of said Hugh T. Munson as such sheriff, issued by the clerk of the district court of the first judicial district of Colorado Territory, within and for the county of Weld, bearing date on the 22d day of September, A. D. 1870, in a certain suit wherein John W. Doane, Patrick J. Towle and John Roper, partners under the firm name and style of J. W. Doane & Co., were plaintiffs, and Oliver S. Glenn and Rufus E. Talpey, partners under the name and style of Glenn & Talpey, were defendants, for the sum of seven thousand one hundred and four dollars and twenty-eight cents, which said writ of attachment was directed to the said Hugh T. Munson as sheriff of Weld county to execute, and being in full force and effect, was placed in the hands of the said Hugh T. Munson as such sheriff to execute, and the said defendant avers that by virtue of said writ of attachment the said Hugh T. Munson, as said sheriff aforesaid, did, on the said 23d day of September, A. D. 1870, and in the life-time of the said writ of attachment, at the county aforesaid, take the said goods and chattels in the said declaration mentioned, and levy upon the same by virtue of the said writ of attachment, as the property of the said Oliver S. Glenn and Rufus E. Talpey, the defendants in said suit, and the said Munson took the said goods and chattels into his possession, according to the statute in such cases made and provided, to answer and abide the judgment of the court in said suit. And the said defendant further avers that afterward, to wit, on the 3d day of November, A. D. 1871, the said Hugh T. Munson turned the said goods and chattels over to this defendant as his successor in office, according to the provisions of the statute in such cases made and provided, the said Munson's term of office having expired prior to the turning over, as aforesaid, of the said goods and chattels, in the said declaration mentioned, being duly elected and qualified sheriff of said Weld county. And the said defendant further avers that at the time of the commencement of this suit and of the service of the writ of replevin issued therein on the defendant, the said suit between the said J. W. Doane & Co., and the said Oliver S. Glenn and Rufus E. Talpey still remained undetermined, and that he held the said goods and chattels in the said declaration mentioned, as sheriff of said county, to answer and abide the judgment in said suit.

And the said defendant further avers that the said goods and chattels in the said declaration mentioned was the property of the said Oliver S. Glenn and Rufus E. Talpey, and were subject to be levied upon by said writ of attachment; without this that the property of the said goods and chattels, or any part thereof, at the same time when, etc., was in the said plaintiffs, as by their said declaration is above supposed, and this the said defendant is ready to verify. Wherefore he prays judgment, etc.

Fourth,-a similar plea to the third, setting up in the inducement, the alias attachment issued in the case of Doane et al.; and fifth, a plea also like the third, setting up in the inducement, the writ of attachment in the case of Farwell et al. v. Oliver S. Glenn and Rufus E. Talpey. Subsequently the defendant filed a sixth plea, 'actio non, because the property in the goods and chattels, when, etc., was in Rufus E. Talpey and Oliver S. Glenn, without this, that,' etc. The plaintiff contended that the last plea presented the same issue tendered by the third, fourth and fifth pleas, to wit: that the property was not in the plaintiffs, but in Oliver S. Glenn and Rufus E. Talpey, and that if the defendant desired to justify he should have done so by way of confession and avoidance, not by way of special traverse, that the pleas were cumulative and needlessly incumbered the record. The motion to strike out the third, fourth and fifth pleas was overruled, and the overruling this motion is one of the errors assigned. Demurrers to these pleas were overruled and the plaintiff replied severally, precludi non, because the property in the goods and chattels was not in Oliver S. Glenn and Rufus E. Talpey; concluding to the country.

The plaintiffs also filed a motion in the district court to suppress the deposition of R. B. Foster and C. W. Kelsey, urging, among other objections, that the dedimus directed the depositions to be taken in the case of Lockhart T. Glenn and George O. Talpey against Jared L. Brush, and that it appeared by the certificate of the commissioner that the depositions were taken in a suit wherein Hugh T. Munson, John W. Doane, Patrick J. Towle, John Roper, Wolf Londoner and J. Sidney Brown were defendants, instead of Jared L. Brush. In the caption of the depositions, however, the cause was properly entitled. The motion was overruled, the plaintiffs excepted, and error is assigned upon the overruling of this motion.

During the progress of the trial the following questions were propounded to the witness Lockhart T. Glenn:

Q. 'Did you hear the description of this property that I first read from the record to the jury?' A. 'Yes, sir, I heard part of it at least.' Q. 'Can you state whether that property described in the record is the same for which this action is brought?' which was objected to as leading, the objection was sustained and plaintiffs excepted.

The following instructions were given to the jury over the objections of the plaintiffs:

'If J. W. Doane & Co. have prosecuted a writ of error to the supreme court of the United States to reverse the judgment which was given in favor of the plaintiffs as their interpleaders in the attachment suit, and have given a bond to prosecute such writ of error, the alleged transcript of which was read in evidence, then such judgment is no longer evidence of any right in the plaintiffs, and you are to cast the same out of your consideration.

'If the jury believe, from the evidence, that the property in question belonged to Oliver S. Glenn and Rufus E. Talpey, and not to the plaintiffs, at the time of bringing this suit, then the jury should find for the defendant whether a debt was due from Oliver S. Glenn and Rufus E. Talpey to the said Doane & Co. and Farwell & Co. or not.'

The jury found a verdict for the defendant upon which judgment was rendered, and to reverse said Judgment Lockhart T. Glenn sued out this writ of error.

Messrs. FRANCE & ROGERS, for plaintiffs in error.

Messrs. CHARLES & DILLON, for defendant in error.

STONE J.

A motion was made for a continuance, based upon an affidavit made by one of the attorneys of the plaintiffs.

It is stated in the affidavit that one Rufus E. Talpey is a material witness for the plaintiff; that he is sick; that by him they can prove the ownership of the property in question to be in the plaintiffs.

Ownership involves the legal or rightful title, and whether one has a title to property depends upon facts: certain facts must be proven to show title. In an affidavit for a continuance, facts must be set forth with sufficient certainty to enable the court to determine the materiality of the evidence, and to anable the opposite party, if he thinks proper, to admit them and go to trial.

The affidavit fails to state a single fact which would tend to establish ownership of...

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  • DAC Uranium Company v. Benton
    • United States
    • U.S. District Court — District of Colorado
    • 28 Diciembre 1956
    ..."In Sylvester v. J. I. Case Threshing Machine Co., 1912, 21 Colo.App. 464, 122 P. 62, the court stated that the cases of Glenn v. Brush, 1876, 3 Colo. 26, and Denver & R. G. R. Co. v. Crawford, 1888, 11 Colo. 598, 19 P. 673, appear to sustain the proposition that a judgment cannot be pleade......
  • St. Louis, Keokuk & Northwestern Railroad Company v. Clark
    • United States
    • Missouri Supreme Court
    • 23 Diciembre 1893
    ...Murphy v. DeFrance, 101 Mo. 151; Chouteau v. Rowse, 90 Mo. 191; Day v. DeYonge, 66 Mich. 550; Byrne v. Prather, 14 La. Ann. 653; Glenn v. Brush, 3 Colo. 26; Campbell v. Howard, 5 Mass. 376; Sharon Hill, 26 F. 337; Woodbury v. Bowman, 13 Cal. 634. (4) The opinion of this court in the Fowler ......
  • Fassler v. Streit
    • United States
    • Nebraska Supreme Court
    • 16 Enero 1913
    ... ... Haskins, 26 Vt. 209; In re Blythe, 99 Cal. 472, ... 34 P. 108; Sherman v. Dilley, 3 Nev. 21; Griffin ... v. Seymour, 15 Iowa 30. In Glenn v. Brush, 3 ... Colo. 26, the supreme court of that state ... [139 N.W. 631] ... said: "The object of a writ of error is to review and ... ...
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    • United States
    • Colorado Court of Appeals
    • 8 Abril 1912
    ...to set up what the absent witness would swear to, if present. Cody v. Butterfield, 1 Colo. 377; Chase v. People, 2 Colo. 509; Glen v. Brush, 3 Colo. 26. (2) The failed to disclose the whereabouts of the witness, and omitted the message or letter which the affiant states that one of the abse......
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