Clear Creek Power & Development Co. v. Cutler

• Decision Date: 19 April 1926
• Docket Number: 11501.
• Citation: 79 Colo. 355,245 P. 939
• Parties: CLEAR CREEK POWER & DEVELOPMENT CO. et al. v. CUTLER.
• Court: Colorado Supreme Court

245 P. 939

79 Colo. 355

CLEAR CREEK POWER & DEVELOPMENT CO. et al. v. CUTLER.

No. 11501.

Supreme Court of Colorado

April 19, 1926

Department 3.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Contempt proceedings by Charles D. Cutler against the Clear Creek Power & Development Company and another. To review a judgment punishing as for contempt, respondents bring error and apply for supersedeas.

Supersedeas denied, and judgment affirmed.

James N. Sabin and Sabin & McGlashan, all of Denver, for plaintiffs in error.

H. L Shattuck, of Denver, for defendant in error.

CAMPBELL J.

This is a writ of error to review a contempt judgment. To give a complete history of the case would unnecessarily incumber our reports. A general statement merely will suffice for our present purpose. Charles D. Cutler filed a complaint having for its object a decree of foreclosure of a trust deed given by the Empire Consolidated Mines, Inc., formerly known as the Randolph Gold Mining, Milling & Tunnel Company, to secure its bond issue. On filing his complaint, plaintiff asked for, and obtained, the appointment by the court of a receiver of the property which consisted of idle mining property and the machinery and equipment of a working mine, the object being through the receiver to preserve the property, and to prevent injury to the mine and the possible larceny of movable property situate thereon, all of which, as it is said, were included in the trust deed. On final hearing a decree of foreclosure was rendered, and under a special execution the property was sold by the sheriff and bid in by the plaintiff, Cutler, who is the owner and holder of the entire bond issue. No further order was made as to the receivership, the order of appointment not having been revoked or set aside, and the receiver has continuously remained, and still is, in possession of the property through a custodian. The Clear Creek Power & Development Company after the sale under the foreclosure deed was made, and while possession of the mine and machinery and the entire plant was in the receiver through his custodian, brought an action against the owner of the mining property, caused an execution thereunder to be issued and delivered to the sheriff of the county where the property in question was situate, with instructions to make a levy upon certain of the movable property thereon consisting of various items of machinery tools, etc., and the sheriff made a levy thereon by posting appropriate notices over earlier notices which were placed upon the property by the same sheriff in making his levy on Cutler's execution. Thereupon an affidavit by the attorney of Cutler, the judgment creditor in the foreclosure suit, was filed in that case, setting forth the alleged illegal acts of the sheriff and the subsequent judgment creditor, the Clear Creek Power & Development Company, in thus unlawfully interfering with the possession of certain of the properties levied upon under the Cutler execution, which were at the time in the custody of the court through its receiver, and asking a rule against the respondents to show cause why they should not be punished for contempt. In response to that rule the respondents sheriff and the subsequent judgment creditor filed their answer to the citation, and upon the hearing the court adjudged them both to be guilty of contempt in interfering with property in the custody of the court, and fined each of them $1, with the usual directions as to imprisonment of the sheriff for failure to pay. The respondents are here with their writ.

It is a recognized rule in this state that, in reviewing contempt judgments, this court will inquire only if the court below had jurisdiction of the offense and of the respondents. It will inquire no further, and in no event will it pass upon the sufficiency of the evidence to justify the sentence imposed. The plaintiffs in error here seek to justify their conduct in taking possession of property in custodia legis by attempting to show many irregularities in the foreclosure suit. Among other things, they say that the trustee in the trust deed that was foreclosed never had any authority to act as such in the state of Colorado, and had ceased to exist that the bonds secured by the trust deed provided, in case the trustee was incapable of acting, or refused to act, the bond owners, or a majority of them, had power to select a successor in trust; that Cutler, although, as alleged in his complaint in his foreclosure suit, was the owner and holder of all of the bonds secured by the trust deed, he had no power to bring or maintain the foreclosure suit; that this property upon which they caused the levy to be made, although in the hands of the court through its receiver, was not included in the trust deed, and some of it was acquired long after the trust...