Barton v. Laws

• Decision Date: 09 January 1894
• Citation: 35 P. 284,4 Colo.App. 212
• Parties: BARTON v. LAWS.
• Court: Colorado Court of Appeals

35 P. 284

4 Colo.App. 212

BARTON v. LAWS.

Court of Appeals of Colorado

January 9, 1894

Error to district court, Arapahoe county.

Action by L.J.Laws against E.R. Barton for conversion. Judgment for plaintiff. Defendant brings error. Affirmed.

Pence &amp Pence and Rogers, Cuthbert & Ellis, for plaintiff in error.

N.M Laws, for defendant in error.

THOMSON J.

L.J.Laws, plaintiff below, alleges in his complaint that on June 3, 1891, he owned and possessed certain buggies and vehicles, of the value of $1,330, which were on that day taken, carried away and converted to his own use, by the defendant, Barton. The answer was--First, a denial; and, second, that the defendant was at that time sheriff of Arapahoe county, and that he took the property by virtue of a writ of attachment issued out of the county court against one Fannie C. McCauley, and held it and was still holding it, as her property, it having been found in her possession. The answer then concludes thus: "And that this defendant holds said property by virtue of said attachment writ, as he was therein commanded, and not otherwise, and that he holds the same subject to the further order of the county court of Arapahoe county, out of which court said writ of attachment was so issued." The answer was verified by the defendant in person. The cause was set for trial on the 12th, and was tried on the 15th, of February, 1892. On the day of the trial the defendant moved the court to amend his answer by striking out the clause which has been quoted, and inserting in lieu thereof the following: "And that this defendant held said property by virtue of said writ of attachment, as he was therein commanded, and not otherwise, and that he did hold and safely keep the same for about the space of forty-eight hours after demand was made upon him by Lewis J. Laws for the same, and that at the end of said forty-eight hours, or about that time, he returned said property to this plaintiff, in the same condition, at the same place, and of the same value, as when levied upon by him, and did surrender possession of said property to this plaintiff in compliance with the demand of the plaintiff." In support of the motion the following affidavit was filed: "D.B. Ellis, being first duly sworn, on oath, states that he is one of the attorneys for the above-named defendant; that he filed the answer now standing in this court in the form usually followed in his office, and without giving special attention or specially looking up the status of this case when said answer was filed, and under the impression that the sheriff, defendant, still held said property under and by virtue of said writ, and was not differently informed until the 12th day of February, 1892, when he called upon the deputy sheriff, who had charge of this matter under the said defendant, and was then informed for the first time that the levy was made under and by virtue of said writ of attachment then in his hands as such sheriff was by him released, and the property returned to the same person, and in the same condition as when he, the said deputy, levied upon it under and by virtue of the writ of attachment set out in said answer." The motion was denied.

The amendment asked was one which the court was authorized to allow, upon affidavit showing good cause. Civil Code, § 75. It can hardly be said that the affidavit filed showed good cause, or any cause, for permitting the amendment. There is no affidavit of the defendant himself, explaining why he swore to the statements of the answer on file, if they were not true, nor is there any affidavit of the deputy in charge of the attachment, showing what he did with the property. The attorney seems to have prepared the answer in some form usually followed in his office, without consulting his client, the defendant, under the impression that it was true, and left it in that condition until the day on which the cause was set for trial, when he was informed otherwise by the deputy. Even the information derived from the deputy, as set out in the affidavit, was not that he returned the property to the plaintiff. If the defendant verified the answer under a misapprehension of the facts, his own affidavit should have been procured, showing how the misapprehension arose, and in what particulars the facts were misstated, and it should have been accompanied by the affidavit of the deputy to the actual occurrences. But, even if all this had been done, an objection would still remain,--that the proposed amendment directly contradicts other portions of the answer. We do not think that the court was guilty of any abuse of discretion in refusing to allow the motion.

The cause came on for trial, and the plaintiff testified as to the ownership and value of the several articles in question. He had been engaged in the business of manufacturing buggies, had manufactured those in dispute,--except one, which had been made by Studebaker Bros., and was secondhand,--and knew their value, which he fixed. Prior to the attachment he sold his business to one Daniel W. Lesh. The sale embraced the unfinished buggies on hand, but did not include the ones in controversy. For the privilege of leaving these upon the premises while he was selling them out, he agreed to give Mr. Lesh a commission of 10 per cent. upon any of them sold by Lesh to persons who were not customers of plaintiff. Lesh afterwards sold the business to Frank Moore, and plaintiff made the same arrangement with him. Neither Lesh nor Moore was his agent for any purpose, or had possession of the property. The possession remained in plaintiff. Upon learning that the goods had been seized, he notified the defendant sheriff and his deputy that his property had been taken, and also applied to Mr. Ellis, the defendant's attorney, to have it released; and finally, some three weeks or more after the levy, he made a written demand upon the defendant for the goods, who informed him that he had levied upon them, had been indemnified by the attachment plaintiff, and had been instructed by the attorneys in the case not to deliver them up, whereupon defendant commenced this suit. He also stated that the property had never been returned to him. There was some other evidence as to value, which will be noticed hereafter. Plaintiff then rested.

The defendant offered in evidence the writ issued in the attachment suit, and the return upon it of the defendant sheriff. The plaintiff objected to its introduction, and the objection was sustained. Defendant contends that this ruling was error. He has not specified it in his assignment of errors, so as to entitle him to have it considered. But the return recites a levy upon real estate only, and does not include this property; so that we are at a loss to comprehend its pertinency to any issue in the case, or to understand what error was committed in rejecting it.

The...