Bragdon v. Bradt

• Decision Date: 14 January 1901
• Parties: BRAGDON v. BRADT et al. [1]
• Court: Colorado Court of Appeals

64 P. 248

16 Colo.App. 65

BRAGDON v. BRADT et al. ^[1]

Court of Appeals of Colorado

January 14, 1901

Appeal from district court, Conejos county.

Action by Charles E. Bradt and others against George E. Bragdon. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Pattison, Waldron & Devine, for appellant.

Z.T Brown and C.A. Merriman, for appellees.

THOMSON J.

On the 3d day of October, 1893, the appellees commenced their action in the district court of Conejos county against James F Donald, to recover the amount of an alleged indebtedness from him to them, and caused a writ of attachment to be issued in aid of their suit. The sheriff, being unable to find property on which to levy his writ, at the request of the plaintiffs served a summons in garnishment upon the appellant. On the 26th day of October, 1893, the garnishee made answer that he was in possession of a stock of goods, wares, and merchandise under and by virtue of a chattel mortgage executed to him by the defendant to secure an indebtedness from the latter to him; that he was at that time engaged in selling the articles composing the stock, for the purpose of satisfying the debt that he had then realized $656.53; and that there was still a balance due of $115.99. Afterwards, on the 9th day of January, 1894, the garnishee deposited in court a paper which he denominated a "supplemental answer," setting forth that by means of subsequent sales the debt secured by the mortgage was fully paid and satisfied, that he had no further interest in the property, that the unsold goods in his hands were worth about $2,000, and praying an order upon the sheriff, or a custodian whom the court might appoint, to receive the property from him. A copy of this document was mailed to the plaintiffs' counsel the day before it was left in the court, and was duly received by him. The court made no order in relation to the property, and the paper was ignored by it, as well as by the plaintiffs. On the 15th day of February, 1894, upon demand of a party holding a second mortgage of the same goods, and a threat by him that if the goods were not surrendered he would commence proceedings for their possession, the garnishee relinquished the property to him. Judgment by default was entered against the defendant on the 27th day of May, 1895, for $612.32. Afterwards, on the 6th day of May, 1897, on motion of the plaintiffs the judgment was set aside, and an alias summons issued, upon which return was made August 13, 1897, that the defendant could not be found. Thereupon service was made by publication, and on the 11th day of November, 1897, judgment by default was again entered against the defendant,--this time for $696.91. On the 29th day of December, 1897, the plaintiffs moved the court for judgment against the garnishee upon his answer and supplemental answer; and on the 28th day of January, 1898, he filed his counter motion for his discharge as garnishee. The court allowed the former motion and denied the latter, and entered judgment against the garnishee for the amount of the judgment against the defendant. The garnishee appeals.

It is only in case the answer of the garnishee shows that he is indebted to the defendant, or has personal property in his possession or under his control belonging to the defendant or in case his answer denying indebtedness to the defendant or possession of his property is successfully controverted, that a judgment against him is lawful. In order to charge him upon his answer, it must contain a clear admission of a debt due to, or the possession of attachable property of, the defendant; and, where his answer is a substantial denial of indebtedness or possession of attachable property belonging to the defendant, he is entitled to a judgment of discharge, unless the force of the denial is overcome by other statements in the answer, or unless the answer is shown to be untrue. Drake, Attachm. § 659; Wade, Attachm. § 367; Railway Co. v. Gibson, 15 Colo. 299, 25 P. 300. The answer of this garnishee showed property in his hands which had been mortgaged to him by the defendant to secure the payment of a debt the defendant owed him, which still remained unpaid. No attempt was made to controvert that answer, and, for the purposes of this case, it is therefore true. It did not admit the possession in the garnishee of property belonging to the defendant. Its statements had an exactly contrary effect. Being a mortgagee of goods, in possession after forfeiture, the garnishee was the legal owner. The goods were his property until his debt should be satisfied. He might well have answered, when garnished, that he had no property in his possession or under his control belonging to the defendant, and such answer would have been sustained by proof of the allegations of the answer...