Buddee v. Spangler

• Citation: 20 P. 760,12 Colo. 216
• Parties: BUDDEE v. SPANGLER.
• Decision Date: 01 February 1889
• Court: Supreme Court of Colorado

20 P. 760

12 Colo. 216

BUDDEE v. SPANGLER.

Supreme Court of Colorado

February 1, 1889

Commissioners' decision. Appeal from district court, Arapahoe county.

Appellant Lucia Buddee, who was plaintiff below, brought this action against Michael Spangler, the appellee, to recover the possession of certain personal property, or the value thereof, and alleged in her complaint that on the 28th day of February, 1883, she was the owner of said property; that defendant on said day wrongfully took said property from her possession; and that he unlawfully withholds and detains the possession of the same, to plaintiff's damage of $1,000. Defendant, answering the complaint, denied that plaintiff ever was the owner of the goods therein mentioned, or any of them; and denied said goods were of the value alleged in the complaint; denied that he took said property from the possession of the plaintiff; alleged that at the time the property was taken he was sheriff of Arapahoe county, and justified the taking under a writ of attachment issued out of the county court of said county in a certain action of Kilpatrick & Brown against A. E. Buddee & Co.; that said writ of attachment was issued upon a valid and subsisting indebtedness due from said Buddee to Kilpatrick & Brown, upon which judgment was subsequently recovered; that the affidavit and bond in attachment in said action were filed as required by law, prior to the issuance of the writ of attachment; that he levied said writ of attachment upon the property described in the complaint, and was holding the same under the attachment at the commencement of this action; that he returned said writ of attachment to the court, as required by law; that said property was taken from the possession of Albert E. Buddee, and was owned by him; admits that plaintiff held a pretended bill of sale from A. E. Buddee for said goods, but says she was not in possession of said goods, and alleges that they had never been removed from the possession of A. E. Buddee; alleges that said pretended bill of sale was made in anticipation of the levy by defendant to prefer the plaintiff, who was a pretended creditor of said A. E. Buddee that plaintiff did not pay any consideration for the pretended transfer, but took the same knowing that A. E Buddee was insolvent, and was being pressed by Kilpatrick &amp Brown to pay their claim, and that such transfer was in fraud of the rights of Kilpatrick & Brown; that said pretended bill of sale was executed by A. E. Buddee to the plaintiff, his mother, in fraud of his creditors, and without consideration, to prevent Kilpatrick & Brown from collecting their debt; that said pretended bill of sale was null and void; and that said goods were owned by A. E. Buddee when defendant levied upon them. Plaintiff, replying to said answer, denied each allegation thereof, and averred the payment of full consideration for the sale of said property to her by A. E. Buddee. The jury returned the following verdict: 'We, the jury, find the issues joined herein for the defendant, and that he is entitled to a return of the property replevied from him in this action, or the value thereof, which we find to be four hundred and seventy dollars.' Judgment for defendant entered on the verdict.

Steele & Malone and Robert Given, for appellant.

John L. Jerome, for appellee.

RISING C., ( after stating the facts as above.)

The first assignment of error questions the ruling of the court in excusing Herman H. Meyer from serving as a juror. It was shown from the examination of the juror that the wife of the juror's brother was a sister of the plaintiff, and the juror stated that he knew a good deal more about the case than he ought to, and that he had some bias and interest in the case because it interested his friends. The court did not err in excusing this juror.

The second, fifth, sixth, and seventh assignments of error question the rulings of the court in admitting in evidence the writ of attachment in the case of Kilpatrick & Brown against Albert E. Buddee in the county court of Arapahoe county, the affidavit for an attachment in said action, the certificate of the clerk of said court that the complaint, affidavit, and undertaking were filed in said action, and a summons and writ of attachment issued therein, and a transcript of the judgment entered in said action. These assignments are each based upon the proposition that the affidavit for an attachment in the action of Kilpatrick & Brown against Buddee is so defective that it did not authorize the issuance of the writ of attachment, and we may therefore consider the said assignments together. The consideration of the sufficiency of the affidavit is objected to by appellee on the ground that such affidavit is not set out in the abstract of the record furnished by appellant, and this objection is based upon the claim that the appeal was taken under the provisions of the act of 1885 concerning appeals to the supreme court, and that, under the provisions of sections 16 and 17 of said act, the abstract of record must set forth so much of the record as may be necessary to a full understanding of the questions presented for decision, and that matters not so set forth cannot be considered. In answer to this objection appellant contends that, an appeal-bond having been filed before the passage of the act of 1885, the appeal was perfected under the law existing at the time of the filing of said bond, and that all subsequent proceedings upon the appeal may be prosecuted in accordance with the practice under the law repealed by the act of 1885. We have no doubt of the correctness of the position contended for by appellant. The affidavit stands as a pleading, and is properly brought up by the record. Goss v. Commissioners, 4 Colo. 468.

It is contended by counsel for appellant, in support of these assignments of error, that when property is taken from the possession of a stranger to the writ, who claims title thereto by purchase from the defendant in such process, and the sale of such property is valid as between the parties to it, but void as to the creditors, the officer can justify the taking in such case only by showing that he represents a creditor, and that the writ under which he seized the property was regularly issued, and that the affidavit required by the statute to be made before a writ of attachment shall issue must conform strictly with the requirements of such statute in order to make the issuance of such writ regular, and that, if such affidavit does not so conform with the requirements of the statute, all proceedings under the writ are void. The rule contended for, and as recognized by the courts of several states, is clearly stated in Drake, Attachm. § 185 a, as follows: 'When the officer attaches property found in the possession of the defendant, he can always justify the levy by the production of the attachment writ, if the same is issued by a court or officer having lawful authority to issue it, and be in legal form. But when the property is found in the possession of a stranger claiming title, the mere production of the writ will not justify its seizure thereunder; the officer must go further, and prove not only that the attachment defendant was indebted to the attachment plaintiff,...