Phillips v. Phillips
| Decision Date | 13 October 1964 |
| Docket Number | No. 20549,20549 |
| Parties | Lilian PHILLIPS, Plaintiff in Error, v. Byron PHILLIPS and Carl Phillips, Defendants in Error. |
| Court | Colorado Supreme Court |
Milenski & Parga, Cortez, for plaintiff in error.
Dilts & Hancock, Cortez, for defendants in error.
We will refer to plaintiff in error as Lilian and to defendants in error by their given names of Byron and Carl.
Prior to October, 1957, the Phillips family had formed a partnership and had engaged in business under the firm name of Phillips & Sons. In addition to Lilian, Byron, and Carl, the partnership included William and Donald.
In July, 1958, Armco Drainage and Metal Products Inc. (hereinafter referred to as Armco) filed an action in the district court of the City and County of Denver against Byron in which it sought judgment for $3,385.31 for goods allegedly sold and delivered to the partnership. Byron obtained a change of venue to Montezuma county and caused the other partners to be made parties to the action. He filed an answer to the claim of Armco, and in his cross complaint against Lilian he asked judgment for any amount decreed against him in favor of Armco. The basis of this claim against Lilian was a dissolution agreement entered into between him and Lilian under which she allegedly had agreed to pay all the debts of the partnership, and to indemnify him against any partnership liability. Carl filed a similar answer and cross complaint against Lilian.
May 22, 1961, the trial court entered judgment on the issues framed by Armco and the several partners, and also on those between the partners themselves. Armco secured a judgment against the partners for the amount claimed by it. As to the respective claims of Byron and Carl against Lilian the court adjudged as follows:
'IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the defendant, Byron Phillips, have and recover judgment on his cross complaint against Lilian Phillips and Phillips and Sons, a partnership, in the amount of one fifth (1/5th) of the amount of the judgment hereinabove decreed in favor of the plaintiff and against the defendants.
'IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the defendant, Carl Phillips, have and recover judgment against the defendant, Lilian Phillips, in the amount of one fifth (1/5th) of the amount of the judgment herein above decreed against the defendants, jointly and severally.'
This judgment was a final determination of the issues framed by the pleadings, and no writ of error was sued out by any aggrieved party to the action.
More than four months after entry of the judgment, on September 25, 1961, Byron filed an instrument in the adjudicated action captioned 'Motion and Application to Charge Separate and Partnership Property of Lilian Phillips for debt.' In this motion he alleged that subsequent to obtaining the above mentioned judgment Armco filed a transcript thereof, and levied upon certain real estate. Byron alleged that to him. The prayer of the motion was:
'That this Court as by law made and provided, charge the interest of the former partner Lilian Phillips, the amount of said judgment, together with interest as therein provided, court costs and attorney fees, or in the alternative to charge the said indebtedness upon the real and personal property owned of record by the said Lilian Phillips at the date of said judgment, above identified, and for the sale of said real property to satisfy the claim of petitioner subject to senior encumbrances thereon if any; for costs herein taxed, * * *'
The only notice to Lilian concerning the filing of this motion was given by mailing a copy thereof to the attorney who had represented her in the case concluded by entry of the judgment. Notwithstanding objections by former counsel for Lilian, who appeared specially for that purpose, that no valid notice or process had been served upon her, the trial court, on February 2, 1962, granted the...
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