Capitol Indus. Bank v. Strain
| Decision Date | 10 June 1968 |
| Docket Number | No. 22048,22048 |
| Citation | 442 P.2d 187,166 Colo. 55 |
| Parties | CAPITOL INDUSTRIAL BANK, a corporation, Plaintiff in Error, v. Roger B. STRAIN, Dr. T. K Kobayashi (t. K. Medical Building), and The 1450 Corporation, a corporation, Defendants in Error. |
| Court | Colorado Supreme Court |
Hyman D. Landy, Denver, for plaintiff in error.
Sanford B. Hertz, Denver, for defendants in error.
This controversy is between Capitol Industrial Bank, the creditor, which had judgment in the trial court against Roger B. Strain for the sum of $421.03, and The 1450 Corporation, as assignee of certain accounts of Strain, and involves garnishment proceedings following the entry of the judgment. From an adverse ruling and judgment, the creditor in those proceedings resorted to this writ of error. Only the two parties mentioned have appeared in this court.
The decisive question before us is: Was the procedure followed by the trial court in the hearing and determination of this dispute lawful?
There is no serious disagreement as to the material facts.
On June 19, 1964, the judgment was rendered; on June 4, 1965, an execution was issued to satisfy the judgment; and, on the same date, a writ of garnishment was issued in aid of execution which was, on June 7, served upon the garnishee, Dr. T. K. Kobayashi.
The garnishee answered on June 8, 1965 (filed June 10). He stated that who according to Mr. Strain is financing his operations.'
On June 30, The 1450 Corporation filed its motion to intervene and quash garnishment, stating therein the grounds upon which it relied. Contrary to regular practice, no pleading accompanied the motion and none was filed.
On the same date, The 1450 Corporation served notice upon the creditor that on July 6, 1965, it would request the trial court to set its motion for hearing, and July 21 was set as the hearing date.
Counsel appeared in the trial court on July 21, ostensibly for the purpose of a hearing upon the motion to intervene and to quash. Instead, the trial court, against the protests of the creditor, proceeded to a hearing upon the merits. Counsel for the creditor repeatedly offered to confess the motion to intervene. He contended that the court could at this stage of the proceedings hear and determine only the motion to quash. The creditor announced that it intended to set forth certain defenses to the pleading which it maintained should be filed by the intervenor. One defense would be that the alleged assignment from Strain to the intervenor, although absolute on its face, was merely for the purpose of security. The other defense would be that the assignment was void.
Over the objections of counsel for the creditor the trial court continued with the hearing on the merits; it granted the motion to quash and ruled that the intervenor's claim was superior to that of the creditor. Accordingly, judgment was entered in favor of the intervenor. Motion for new trial was filed by the creditor and overruled.
First: In garnishment proceedings intervention is governed by R.C.P.Colo. 103(n), which provides that a party shall proceed in accordance with Rule 24. The latter rule requires that a motion to intervene shall be filed, and, further, that it shall be accompanied by a pleading. The rules specify that the motion shall set forth the grounds for intervention, while the pleading shall state the...
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Weston v. T&T, LLC
...was a technicality that did not result in the invasion of a substantial right). In addition, we conclude that Capitol Industrial Bank v. Strain, 166 Colo. 55, 442 P.2d 187 (1968), upon which T & T relies, is distinguishable. There, the intervenor filed a motion to intervene, but no pleading......
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In re Runge
...added.) "A motion is not a pleading." People v. Anderson , 828 P.2d 228, 231 (Colo. 1992) (quoting Capitol Indus. Bank v. Strain , 166 Colo. 55, 58, 442 P.2d 187, 188 (1968) ).¶ 19 Indeed, C.R.C.P. 7(a) identifies the pleadings in an action as the complaint and answer, a reply to a counterc......
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Motz v. Jammaron, 82CA0466
...enforce them when timely objections are made in reliance on the clear and unambiguous language of the rules. Capitol Industrial Bank v. Strain, 166 Colo. 55, 442 P.2d 187 (1968). Prejudice to lessees is apparent by virtue of the trial court's treatment of the jury verdict, in this case, as ......
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People v. Anderson
...the claim or defense for which intervention is sought." C.R.C.P. 24(c) (emphasis added). As we said in Capitol Industrial Bank v. Strain, 166 Colo. 55, 58, 442 P.2d 187, 188 (1968): A motion is not a pleading. This is so although the two have similar formal parts and even though certain def......