Beifeld v. Martin

• Decision Date: 28 May 1894
• Citation: 37 P. 32,4 Colo.App. 578
• Parties: BEIFELD et al. v. MARTIN.
• Court: Colorado Court of Appeals

37 P. 32

4 Colo.App. 578

BEIFELD et al. v. MARTIN.

Court of Appeals of Colorado

May 28, 1894

Error to district court, Pueblo county.

Petition by Joseph Beifeld & Co. to be allowed to participate in the assignment of Frank C. Taft to Edmund H. Martin. To a judgment for the assignee, petitioners bring error. Affirmed.

D McCaskill and Rogers, Cuthbert & Ellis, for plaintiffs in error.

Dixon &amp Dixon, for defendant in error.

THOMSON J.

The plaintiffs in error, Beifeld & Co., presented their petition to the district court of Pueblo county, alleging a general assignment by Frank C. Taft for the benefit of all his creditors; the taking possession under the assignment by Edmund H. Martin, the assignee, of all the property assigned; the filing by Beifeld & Co., with the assignee, of a certified copy of a judgment obtained by them against Taft in the district court of Arapahoe county for about $2,100 and costs, to which, as a claim against the estate, no objection was made by any person; the filing of a report by the assignee, and the making and payment of dividends; the failure and refusal of the assignee to recognize the petitioners as creditors; the possession of money by the assignee which could be applied upon their judgment,--and praying an order upon the assignee for the payment to them, out of the moneys in his hands, of the proportion to which they were entitled as creditors. The assignee answered, denying that all the property assigned to him came into his possession, and averring that, after the assignment, Beifeld & Co. caused a large quantity of the assigned property to be levied upon by attachment against the assignor, prosecuted their attachment suit to judgment (which is the same judgment mentioned in the petition), caused the property attached to be sold, and received the proceeds of the sale, and that by reason of the premises the petitioners were precluded from claiming any interest in the assigned estate in the hands of the assignor. The record contains what purports to be a copy of the assignee's report, made after the filing with him of Beifeld & Co.'s judgment, and before any dividend was ordered by the court, which sets forth the service upon the assignee of a copy of the judgment; the attachment by the petitioners, after the assignment, of a portion of the goods assigned, to satisfy their claim; and the sale of the property by virtue of an order in their behalf made in the cause by the court,--and asserts that, as the assignee is advised, they waived their claim against the estate by prosecuting their attachment to judgment. Upon a hearing the court denied the prayer of the petitioners and they have brought the case here for review. The judgment is assigned for error.

The contention of the petitioners is that no objection was made to the claim filed by the assignee, as required by the assignment law, and that, therefore, the duty of the court to order the payment to them of their distributory share was...