Carnahan v. Pell

• Decision Date: 01 October 1878
• Citation: 4 Colo. 190
• Parties: CARNAHAN v. PELL.
• Court: Colorado Supreme Court

4 Colo. 190

CARNAHAN v. PELL.

Supreme Court of Colorado

October, 1878

Error to County Court of Boulder County.

THE facts are stated in the opinion.

Mr BEN. LANE POSEY and Mr. JOHN M. MAXWELL, for plaintiff in error.

Mr ORRIS BLAKE & Mr. R. H. WHITELY, for defendant in error.

THATCHER C. J.

This was an action in replevin, with a count in trover added, as authorized by statute. The suit was brought by Pell against Carnahan, to recover a certain quantity of wheat or its value.

The plaintiff first offered and read in evidence a record of the probate court of Boulder county setting out a judgment of said court, entered on the 23d day of February, A. D. 1876 in a cause in assumpsit in which William G. Pell was plaintiff and John C. Morehead and Samuel Hayden were defendants. Judgment was given for the plaintiff in the sum of $472.50. An alias execution having been issued upon said judgment, was then offered in evidence, which was in the following form:

'STATE OF COLORADO, BOULDER COUNTY,} ss.:

The People of the Territory of Colorado to the Sheriff or any Constable of Boulder county,-Greeting:

We command you, as we have heretofore commanded you, that of the lands and tenements, goods and chattels and chattels real of John C. Morehead and Samuel Hayden, defendants in your county, you cause to be made the sum of four hundred and seventy-two dollars and fifty cents, which William G. Pell, plaintiff, lately in the probate court of said Boulder county, at a term thereof begun and holden at Boulder, in said county, on the 14th day of February, A. D. 1876, recovered a judgment against the said defendants, and which, by the said court, was adjudged to the said plaintiff for his damages in this behalf sustained.

Witness, Edward J. Morath, Clerk of the County Court, and the seal thereof, at Boulder in said county, this 12th day of August, A. D. 1876.

[L. S.]

EDWARD J. MORATH, Clerk.' By the return on said writ it appears that Samuel B. Austin, as constable, did in virtue thereof on the 24th day of August, at the White Rock flouring mill, in Boulder county, levy upon ten thousand pounds of wheat as the property of the defendant Morehead, and on the 8th day of September, upon sixteen thousand and eighteen pounds of wheat as the property of the defendant Hayden; that pursuant to notice, on the 5th day of October, at public auction, he sold all of said wheat to William G. Pell.

The defendant below objected to the admission in evidence of the execution and the return thereon, chiefly on three grounds. First, because the execution runs in the name of the People of the Territory and not of the State of Colorado; and, second, because the levy and sale in pursuance of the writ were made by a constable and not by a sheriff; third, that no valid judgment had been shown or proven upon which to found the execution.

The judgment upon which the execution had been issued was a judgment of a court of record, of competent jurisdiction, and pronounced in due form of law. It is insisted that the execution is absolutely void for the reason that it does not run in the name of the People of the State of Colorado. On the 1st day of August, A. D. 1876, the president of the United States issued his proclamation declaring 'the admission of Colorado as a State into the Union complete.' Section 30, article 6th, of our Constitution directs that 'All processes shall run in the name of the People of the State of Colorado.' Eleven days intervened between the president's proclamation and the issuance of the execution. Is the writ void? We think not. By the schedule to the same Constitution, it is provided that all laws in force at the adoption of the Constitution should remain of the same force as if the Constitution had not been adopted, until they should expire by their own limitation, or should be altered or repealed by the general assembly. Under the statute of Amendments and Jeofails (R. S. 1868, p. 46), which was in force when this case tried, and remained in force until repealed by the Code (Code, p. 161), the clerical misprision-as the insertion of the word Territory instead of State, clearly was-would not invalidate the writ. In this respect the writ was amendable.

Even if we were to leave out of view the statute concerning amendments and jeofails, we are inclined to the opinion that the mere omission of the style of the writ would not make it a nullity. Says Freeman on Executions, s 39: 'Although it has been the custom in England to issue the writ in the name of the reigning sovereign, and in the greater portion of the United States in the name of the State or the People of the State, we have met with no decision determining the effect of an omission or variance in this respect. We are inclined to regard these words as a formal rather than as a substantial part of the writ. The parts which follow sufficiently show the authority under which the writ is issued.'

The writ was regularly directed to the sheriff or any constable of Boulder county. Under the law a constable had the same authority as the sheriff to execute a writ of fi. fa. issued out of a probate court. R. S. 1868, p. 524, s 13.

By reference to the constable's return to the alias execution, it appears that the levy upon the wheat-26,018 pounds-was complete on the 8th day of September. On the 14th day of the same month Carnahan executed and delivered to the constable the following receipt:

'Received of S. B. Austin, a constable of Boulder county, 26,018 pounds of wheat, which I agree to hold and keep for said Austin, unless taken from me by law. This wheat, said wheat being in litigation.

J. M. CARNAHAN.

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