Fisher v. Hervey

• Decision Date: 01 December 1881
• Citation: 6 Colo. 16
• Parties: FISHER v. HERVEY.
• Court: Colorado Supreme Court

6 Colo. 16

FISHER v. HERVEY.

Supreme Court of Colorado

December, 1881

Messrs BROWNE and PUTNAM, for appellant.

Messrs MARKHAM and PATTERSON, for appellee.

BECK J.

The question presented by this appeal is whether a justice of the peace is authorized by the act of February 21, 1879 concerning garnishment, to issue garnishee process on a judgment rendered before the passage of that act.

The territorial statutes authorized proceedings of this character before justices of the peace and in courts of record; but in the enactment of the Code of Civil Procedure all were repealed, saving only the process of garnishment in attachment proceedings before courts of record.

It is to be remarked, however, that the same provisions substantially, which existed on this subject in the former statutes were re-enacted in 1879, being the session of the legislative assembly next succeeding their repeal.

But the construction of the latter act, as now contended for, would deprive creditors, whose judgments were entered in the interim, or at any time prior to the re-enactment, of this process for their collection. That such was the intention of the legislative assembly is highly improbable. When legislative bodies design to relieve debtors of the burdens of their debts, bankrupt laws and laws of limitation are passed for the purpose.

Proceedings of the nature under consideration manifest a contrary intention. They are passed in the interest of the creditor, and for the purpose of enabling him to reach, and appropriate to the satisfaction of his judgment, property and credits of the debtor in the hands of third persons.

There is no reason why garnishee process under the last act should not issue upon a judgment entered in 1877, as well as upon one entered in 1879.

The judgments remain in full force and effect in both cases, and process of execution may issue in both for their collection. The act in question is a remedial act, and should be liberally construed for the advancement of the remedy. Mr. Dwarris says: 'Such a statute, it is universally held, is to be liberally construed, and that everything is to be done in advancement of the remedy that can be given consistently with any construction that can be put upon it.' Dwarris on Statutes, pp. 73, 74.

'Such construction,' it is said, 'ought to be put upon a statute as may best answer the intention which the makers had in view. And this intention is sometimes to be collected from the cause or necessity of making the statute, and sometimes from other circumstances; and whenever such intention can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construction seem contrary to the letter of the statute. Where any words are obscure or doubtful, the intention of the legislature is to be resorted to in order to find the meaning of the words. A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter.' 15 Johns. 379; Bac. Abr. Stat. I.

The intention of the framers of the statute under consideration evidently was to restore the law of garnishment upon judgments at law as it existed prior to the adoption of the Code of Civil Procedure. The only portion of the act indicative of a design to confine its operations to future judgments is the first clause of the first section, commencing 'Whenever a judgment shall be rendered by any court of record or any justice of the peace,' etc.

This phraseology is a literal copy of the first clause of sec. 38, ch. 48, R. S. 1868, which was the first section of the law of garnishment upon judgments at law in that revision.

Neither the title of the act of 1879, nor the act as a whole indicate an intention on the part of the legislature to confine its...