Barnes v. Beighly

• Decision Date: 24 January 1887
• Citation: 9 Colo. 475,12 P. 906
• Parties: BARNES and another v. BEIGHLY.
• Court: Colorado Supreme Court

12 P. 906

9 Colo. 475

BARNES and another v. BEIGHLY.

Supreme Court of Colorado

January 24, 1887

Appeal from county court, Clear Creek county.

The plaintiff, Beighly, brought suit in the county court of Clear Creek county, to the November term, 1882, against the defendants, Orpheus I. Barnes, L. H. Barnes, and S. A Gilbert, for discovery, and in aid of a judgment previously recovered in the said court by the same plaintiff against the said Orpheus I. Barnes. The original cause of action was a balance due on account for goods and chattels sold and delivered by the plaintiff to the defendant, the amount of the recovery being $673.65. The present action was not instituted in pursuance of the Code remedy, by proceedings supplementary to execution, but is a proceeding in equity in the nature of a creditors' bill. The bill alleges, among other things, that the original judgment is still in full force and effect, and remains wholly unsatisfied; that the judgment debtor, O. I. Barnes, after the rendition of said judgment, removed to Leadville, Lake county, and engaged in business there in the name of the said L. H. Barnes, his wife, with the intent and purpose of placing and keeping his money and property beyond the reach of any execution that might be issued on the plaintiff's judgment. It further alleges that the co-defendants, L. H. Barnes and S. A Gilbert, colluded with said judgment debtor to obstruct the collection of said judgment; that said O. I. Barnes purchased real estate and personal property with his own funds, and caused the title thereof to be transferred to his co-defendants, for the purpose of cheating and defrauding the plaintiff in the collection of his judgment. The bill specifies certain real and personal property alleged to be so acquired and held by the co-defendants, charging that no consideration moved from them to the vendors, but that the property is fraudulently held in trust for the use and benefit of said O. I. Barnes. Charges of the same character are made in relation to property alleged to have been owned by said judgment debtor in Gilpin county, during the business transactions which formed the basis of the original judgment and the proceeds of the sale thereof, it is alleged, were fraudulently transferred to his wife, the said L. H. Barnes. Discovery is sought concerning all these transactions and alleged fraudulent and collusive conduct, with full disclosure as to all property owned by said O. I. Barnes, or in which he is in any manner beneficially interested. Judgment is prayed that the defendants, or some of them, be decreed to pay the plaintiff the amount of said judgment with interest and costs, and that defendants, or some of them, be adjudged to apply for that purpose any money, property, or choses in action belonging to said O. I. Barnes, or held in trust for him, or in which he is in any way interested. Summons was served on O. I. Barnes and L. H. Barnes, and they were the only defendants who appeared to the action. Said defendants answered the bill, denying all the fraudulent conduct charged, and responding to all inquiries concerning the ownership of property, and how the same was derived. The plaintiff filed a replication traversing the truth of the statements made by the defendants, but offered little testimony contradictory thereof. Upon the hearing, no findings of fact appear to have been made, but the court rendered a general judgment in favor of the plaintiff against said defendants, O. I. Barnes and L. H. Barnes, for the sum of $1,046.53, and costs.

W. P. Wade, for appellants.

L. C. Rockwell, for appellee.

BECK C.J.

This is a record of proceedings had in the court below, upon a bill filed therein by the appellee in the nature of a creditors' bill. It is earnestly contended on part of the appellants that such a proceeding could not be legally entertained under the laws of this state, on the facts and circumstances set out in the bill. This objection was not raised in the county court, either by demurrer or answer, nor is it here directly presented by any of the assignments of error. We are therefore not called upon to decide this question. But the sufficiency of the bill itself, and of the evidence to support relief in such a proceeding, and the regularity and validity of the judgment rendered, are questions properly before us for adjudication.

We do not hesitate to say that the bill is defective. It sets out among other things, that the judgment sought to be enforced was rendered by the county court of Clear Creek county; that the judgment debtor and his co-defendants are residents of Lake county; and that the judgment debtor purchased real estate and personal property in the latter county with his own funds, taking the title in the names of his co-defendants, 'for the purpose of cheating, hindering, and defrauding the plaintiff in the collection of his said judgment. Real estate and personal property is described which is alleged to be so held. The bill avers the issue of execution to Lake county, and its return nulla bona, but...