Continental Trust Co. v. Patterson

• Decision Date: 13 July 1914
• Docket Number: 4036
• Citation: 26 Colo.App. 186,142 P. 422
• Parties: CONTINENTAL TRUST CO. et al. v. PATTERSON et al. (ARMSTRONG, Intervener).
• Court: Colorado Court of Appeals

142 P. 422

26 Colo.App. 186

CONTINENTAL TRUST CO. et al. v. PATTERSON et al. (ARMSTRONG, Intervener).

No. 4036

Court of Appeals of Colorado

July 13, 1914

Error to District Court, Weld County; Neil F. Graham, Judge.

Action by W.R. Patterson and others against W.L. Clayton, in which the Continental Trust Company and another, as receivers of the Denver, Laramie & Northwestern Railroad Company, were made parties defendant, and in which L.E. Armstrong intervened. There was a judgment for plaintiffs and intervener, and the receivers bring error. Affirmed.

George L. Nye and W.W. Garwood, both of Denver, for plaintiffs in error.

R.E Winbourn, of Greeley, for Patterson, Dauth and McKinney, as trustees.

CUNNINGHAM P.J.

This was an action brought by W.R. Patterson and others, who were trustees of the Elks' Lodge at Greeley, to foreclose a trust deed which had been given them in their representative capacity as security for a balance due on the purchase price of certain lots, the action being brought against W.L Clayton, as trustee, who, as trustee, had given the trust deed in question. It developed on the trial that Clayton was trustee for the Denver, Laramie & Northwestern Railroad Company, and at the time the Elks' Lodge sold the lots to Clayton as trustee he (Clayton) was really taking the title for said railroad company. Afterwards Patterson, and the other trustees of the Elks' Lodge, who were the plaintiffs, by petition brought in the railroad company, and the Continental Trust Company, and Marshall B. Smith, who after the filing of the original complaint, had been appointed by the Denver district court as receivers for the railroad company. Upon the petition filed by Patterson and the other trustees of the Elks' Lodge, the court made an order permitting the railroad company and its receivers to "appear and defend in the suit, if they so desire, to set forth their respective claims." The railroad company and its receivers were served with summons, filed verified answers, and made a general appearance without in any manner objecting to the jurisdiction of the Weld county district court. The case was tried on its merits; the receivers being represented on the trial by an attorney, as was the railroad company. Judgment was rendered in favor of the plaintiffs trustees of the Elks' Lodge, in the ordinary form, and in favor of L.E. Armstrong, who in the meantime had intervened for the reason that he had what was, in effect, a second mortgage on the real estate. But the judgment in favor of Armstrong was made subordinate or junior to the plaintiffs' judgment. The Continental Trust Company and Marshall B. Smith, receivers of the railroad company, sued out a writ of error to the judgment, and brought the case here for review. Later Hugh U. Wallace was substituted for Smith as receiver. This is not a complete, but a sufficient, statement for the purpose of considering such assignments of error as we think require notice.

Plaintiffs in error challenge the jurisdiction of the district court of Greeley, "upon the ground that all of the assets of the Denver, Laramie & Northwestern Railroad Company were under the control of the district court of Denver, through receivers." They also deny the authority of the Weld county district court to interfere with the receivers' property held in the custody of said court. In other words by their assignments of error plaintiffs in error contend that the property which the defendants in error are seeking to reach by this...