Collard v. Hohnstein
| Decision Date | 01 July 1918 |
| Docket Number | 9091. |
| Citation | 174 P. 596,64 Colo. 478 |
| Parties | COLLARD v. HOHNSTEIN. |
| Court | Colorado Supreme Court |
Error to District Court, Logan County; Haslett P. Burke, Judge.
Action by H. P. Hohnstein against I. R. Collard. Verdict and judgment for plaintiff, and defendant brings error. Affirmed.
W. L Hays. of Sterling, for plaintiff in error.
Munson Keating & Munson. of Sterling, for defendant in error.
This is an action brought under section 3634, R. S. 1908, for treble damages for the alleged unlawful seizure, under process by a constable, of property claimed to be exempt from execution sale. Verdict and judgment were for plaintiff. Defendant assigns error and brings the judgment here for review.
The sole question is whether the trial court had jurisdiction to hear and determine the case. The theory of plaintiff in error is that no action for the wrongful levy of an attachment writ will lie against a constable making such levy, and that the only remedy open is under sections 3782 and 3783, R. S. 1908 providing for a hearing before a justice of the peace to determine ownership, or the exemption from process of property attached. It is urged that these statutory remedies are exclusive.
To deprive plaintiff of his common-law right of action it is essential that it affirmatively appear that the statutes themselves, either directly or by necessary implication abrogate such right.
In Madera v. Holdrege, 4 Colo. App, 126, 35 P. 52, this question is indirectly determined. That was an action for damages for seizure of exempt property upon a writ of attachment out of a justice court, and the question was whether the return of the property had been made within a reasonable time. The appellate court, in holding that this was a question for the jury, tacitly acknowledged the right of plaintiff to maintain the action independent of sections 3782 and 3783, supra.
Harrington v. Smith, 14 Colo. 376, 23 P. 331, 20 Am.St.Rep. 272, was a similar action against a constable for unlawful seizure of exempt property. This court there held in effect that a plaintiff is not necessarily confined to the statutory remedy.
The Court of Appeals, in Duncan v. Burchinell, 14 Colo.App. 471, 61 P. 61, was another case in which the plaintiff was permitted to recover in an action for damages for alleged wrongful levy upon exempt property under an attachment writ.
It appears, therefore, that the statutory remedy never...
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Giampapa v. American Family Mut. Ins. Co.
...either directly or by necessary implication. See Kristensen v. Jones, 195 Colo. 122, 124, 575 P.2d 854, 855 (1978); Collard v. Hohnstein, 64 Colo. 478, 479, 174 P. 596 (1918). Therefore, a mere overlap of statutory and common law claims does not preempt the common law Section 10-4-708(1.8) ......
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Brown v. Transcon Lines
...472, 249 P. 992, 994 (1926); Mulroy v. Sioux Falls Trust & Savings Bank, 165 Minn. 295, 206 N.W. 461, 463 (1925); Collard v. Hohnstein, 64 Colo. 478, 174 P. 596, 597 (1918); and King v. Viscoloid Co., 219 Mass. 420, 106 N.E. 988, 989 (1914).7 See Lindner v. District of Columbia, 32 A.2d 540......
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Farmers Group, Inc. v. Williams
...Statutes are not presumed to alter the common law otherwise than the act expressly provides.") (citations omitted); Collard v. Hohnstein, 64 Colo. 478, 479, 174 P. 596 (1918) ("To deprive plaintiff of his common law right of action it is essential that it affirmatively appear that the statu......
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Kyllo v. Panzer
...will not lightly infer a legislative abrogation of that right absent a clear expression of intent. Id. at 855 (citing Collard v. Hohnstein, 64 Colo. 478, 174 P. 596 (1918)). The Kristensen court held negligent operators of public vehicles fell within the common law scope of personal liabili......