Coon v. Rigden

• Decision Date: 01 December 1878
• Citation: 4 Colo. 275
• Parties: COON et al. v. RIGDEN.
• Court: Colorado Supreme Court

4 Colo. 275

COON et al. v. RIGDEN.

Supreme Court of Colorado

December, 1878

Error to County Court of Larimer County.

TRESPASS de bonis asportatis. Plea not guilty and two special pleas the first being:

A plea of confession and avoidance, setting up a levy of an attachment writ upon the property in question, at the suit of Yeager against John H. Rigden, and that the property was the property of John H. Rigden, and in his possession at the time when, etc. Second, actio non, 'because they say that after the said defendant the said Marcus Coon had executed the aforesaid writ of attachment on said property, described in said declaration herein, and had taken said property into his actual possession, to wit: on the 21st day of April 1877, and before the commencement of this action, and after the committing the said supposed trespass alleged in said declaration, the said defendant herein, Joshua Yeager and John H. Rigden, the husband of the said plaintiff herein made and entered into a written agreement that said attachment levy might remain on said property, being the property described in the declaration herein, and not be released except said John Rigden could sell it or part thereof, and pay the amount of said sale to said defendant Joshua Yeager, which agreement is in words and figures as follows, to wit: 'This agreement, entered into the 21st of April, 1877, between Joshua H. Yeager of the first part, and John H. Rigden of the second part, witnesseth: That whereas, the said party of the first part did on the 20th day of April, 1877, institute a suit by attachment, in the district court of the county of Larimer, against the said party of the second part, to secure a certain demand against him, and, whereas, the sheriff of said county levied said writ on certain property of said party of the second part, this day, now, therefore, it is hereby stipulated and agreed, that said attachment levy shall remain on said property, and that in the meantime said party of the second part may have three months to pay and satisfy so much of the said attachment claim as the note amounts to, and that if he can sell any of the property attached he shall have the same released, provided he pays what the property sells for, to the party of the first part, to apply on the claim sued on, and the party of the first part hereby remits ten dollars of the amount of the attachment costs. It is also hereby stipulated that the party of the second part hereby relinquishes all the right, title and claim to the possession of a herd of cattle, as per agreement entered into between said parties on the 11th day of December, 1875. And said party of the second part hereby agrees to go to work immediately and gather and hunt up all the cattle belonging to said party of the first part that can be found, and account for those which cannot be found, and deliver them up to said party of the first part, and fully pay and satisfy and indemnify said party of the first part for all loss, costs and expenses herein and under said agreement, except the sum of ten dollars costs remitted. The party of the first part is to furnish two hands to assist in gathering said stock, and after all said cattle are gathered in and accounted or paid for, and all the expense and costs paid as aforesaid, and said attachment satisfied, the said suit is to be dismissed by said party of the first part, at defendant's cost. It is also agreed that the party of the first part shall take the cattle from the ranch of the party of the second part in said county as fast as they can be found, free of charge against the party of the second part, and is not bound to furnish the two hands to gather in the stock as herein stipulated.

(Signed)

J. H. YEAGER,

J. H. RIGDEN.'

And the defendants say that the stock and goods and chattels mentioned in the aforesaid agreement are the same and none other than the said goods and chattels described in said declaration herein, and that they are the same goods and chattels now held by virtue of said writ of attachment, and none other; and that said agreement is still in force and unsatisfied; and that the said goods and chattels referred to in said agreement held by said attachment are the same and none other than the goods and chattels described in said declaration proven the property of said John H. Rigden when they were attached and liable to be attached at the county aforesaid, and this the defendants are ready to verify. Wherefore they pray judgment, etc.'

To which the plaintiff replied that the property in the said goods and chattels was not in the said John H. Rigden, as in said pleas alleged, but in the said plaintiff.

The other facts are sufficiently stated in the opinion.

Mr. G. BERKLEY and Mr. E. V. PRICE, for plaintiff in error.

Messrs. HUGHES & WELBORN, for defendants in error.

ELBERT J.

Under date of February 15, 1876, John H. Rigden sold to J. H. Yeager, certain cattle and other chattels, giving a bill of sale of the same. On the 18th of April following, Yeager sold the same property to Caroline Rigden, the wife of J. H. Rigden, the first vendor, also giving a bill of sale therefor. On the 20th day of April, 1877, Yeager sued out of the district court for the county of Larimer a writ of attachment against the goods and chattels, lands and tenements of the said John H. Rigden, which was levied by the sheriff upon the property thus transferred, as the property of J. H. Rigden. On the 23d of May following, Caroline Rigden, the wife, brought an action of trespass in the county court of Larimer county, against Yeager, the plaintiff in the attachment suit, and Marcus Coon, the sheriff, who made the levy. Trial was had in the trespass suit at the June term, resulting in a verdict in favor of the plaintiff for $1,600.

The defendants, Yeager and Coon, bring error.

The instructions in this case, both given and refused, cannot be reviewed in this court as the exception to them is general. Such an exception we have repeatedly held insufficient. Webber v. Emmerson, 3 Col. 248; The Kansas Pacific R. R. v. Ward, ante, p. 30.

The remaining assignments we will consider in their order. A motion was made to quash both the summons and venire, as being improperly directed to and served by the coroner. Section 3, Article 5, R. S., p. 180, provides that the coroner shall serve and execute process of every kind, and perform all other duties of the sheriff when the sheriff shall be a party to the case. * * * This is a special provision for the service of process in suits where the sheriff is a party, and controls and limits section 33 of the act concerning probate courts, R. S., p. 527, which provides that 'all process issued by or out of said probate courts, shall be directed to the sheriff or any constable of the property county.'

The probate (now county) court is a court of record. The sheriff is an officer of all courts of record in his county, and the same reason exists for holding this provision applicable to the probate as to the district court. Both motions were properly overruled. Regularly we think, when the sheriff is a party, his official character should appear by allegation in the declaration or by suggestion of record. Courts, however, take judicial notice of who are their own officers, and, in the absence of any proof to the contrary, the court in this instance was justified in presuming the identity of the defendant and the sheriff.

In the absence of any showing that the defendant Coon was not the sheriff of that name, the court was not called upon to quash the writs, nor was the defendant entitled to judgment on his pleas.

The matter set up in the two special pleas would not avail as a bar to a recovery, unless Rigden, the husband, was the owner of the property attached. His agreement that the property attached should remain subject to the attachment was without force or effect, unless the title to the property was in him. There is no allegation that in making this agreement he acted as agent of his wife. The replication, therefore, in denying the ownership of Rigden, went to all that was material in the pleas, and the defendant's motion for judgment, upon the ground that his special pleas were not traversed, was without merit.

The objection that the verdict was against the evidence resolves itself into two propositions:

1st. That there was not sufficient evidence that the plaintiff had either a general or qualified...