Clarke v. Asher
| Decision Date | 01 July 1912 |
| Citation | 125 P. 538,53 Colo. 313 |
| Court | Colorado Supreme Court |
| Parties | CLARKE, Sheriff, v. ASHER. |
Error to District Court, La Plata County; Charles A. Pike, Judge.
Action by W. B. Asher against John Clarke. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded.
Defendant in error commenced suit against the plaintiff in error in his official capacity, the sole purpose of which was to enjoin him from levying an execution on property of the defendant issued on a judgment rendered by the county court of Hinsdale county in an action wherein the treasurer of that county was plaintiff and the plaintiff in the present action the defendant. The complaint averred, so far as material to notice in considering the one question we shall determine that the action instituted by the treasurer of Hinsdale county was to obtain judgment against the present plaintiff for taxes levied against him for the years 1902 and 1903 on personal property alleged to belong to the plaintiff; that he had no personal property in that county for either of these years; that the amount of such taxes for the year 1902 was a little over $100, and for 1903 something like $20; and that in the complaint in that action it was alleged that the taxes levied were upon personal property of the defendant situated in Hinsdale county on the 1st day of May for each of the years named. The complaint further charges that summons in this action was issued and served upon defendant, and judgment rendered against him by default. The execution sought to be restrained was issued on this judgment. To this complaint the defendant filed a general and special demurrer which was overruled, and, as he elected to stand thereon judgment was rendered in favor of the plaintiff, perpetually enjoining him from making any levy under the execution in his hands. To review this judgment the defendant brings the case here for review on error.
Russell & Reese, of Durango, for plaintiff in error.
O. S Galbreath, of Durango, for defendant in error.
The attack made upon the judgment of the county court of Hinsdale county is collateral. Where the court has jurisdiction of the parties and the subject-matter in a case, its judgment unless reversed or annulled in some proper proceeding, is not open to attack or impeachment in any collateral action or proceeding whatever. Trowbridge v. Allen, 48 Colo. 419, 421 110 P. 193. From the averments of the complaint it appears...
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McLeod v. Provident Mut. Life Ins. Co. of Philadelphia
...157, 385 P.2d 131; Hill v. Benevolent League, 133 Colo. 349, 295 P.2d 231; Stokes v. Kingsbury, 63 Colo. 27, 164 P. 313; Clarke v. Asher, 53 Colo. 313, 125 P. 538. See also Hanley v. Four Corners Vacation Properties, Inc., 349 F.Supp. 229 (D.Colo.), aff'd, 480 F.2d 536 (10th Cir.); 46 Am.Ju......
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Tekai Corp. v. Transamerica Title Ins. Co., 76-297
...a direct attack on the execution and sale rather than a collateral attack on the judgment supporting the execution. Cf. Clarke v. Asher, 53 Colo. 313, 125 P. 358 (1912); see also Prudential Corp. v. Bazaman, 512 S.W.2d 85 (Tex.Civ.App.1974). And we further hold that an execution sale may be......
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Marriage of Stroud, In re
...motion void. The court's action would simply be legal error, making the order vulnerable to reversal upon appeal. See Clarke v. Asher, 53 Colo. 313, 125 P. 538 (1912) (judgment not subject to collateral attack even though the complaint on which the judgment was rendered fails to state a cau......
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State v. Harry Gotjdy.
...have his complaint amended in accord with the facts as ascertained by the decree. See 15 R. C. L. tit. Judgments, §§122, 123. In Clarke v. Asher, 53 Colo. 313, it was held: "A bill to stay execution of a judgment at law is a collateral attack of the judgment. When the court in which the jud......