La Fitte v. Salisbury

• Decision Date: 04 May 1908
• Parties: LA FITTE v. SALISBURY et al.
• Court: Colorado Supreme Court

95 P. 1065

43 Colo. 248

LA FITTE v. SALISBURY et al.

Supreme Court of Colorado

May 4, 1908

Error to District Court, Larimer County; Christian A. Bennett Judge.

Action by Marie La Fitte against George Salisbury and others to have a judgment of revival declared void, etc. Judgment for defendants, and plaintiff brings error. Affirmed.

Plaintiff in error filed a complaint in the court below, in which she designated the defendants in error as defendants. In her complaint she alleged, in substance, that in December, 1881 in the district court of Pueblo county, the defendant Rups obtained a judgment against her in the sum of $2,076.30 and costs; that in 1894 the defendant George Salisbury commenced a proceeding in the district court of Pueblo county as the assignee of the Rups judgment, whereby it was revived in his name, in the sum of $3,130, and costs amounting to $65. She then alleges that Salisbury, contriving to cheat and defraud her, falsely represented to the court that he was the assignee of the judgment, when, in fact, it had never been assigned to him by Rups, and he was never authorized to revive it, but that Rups always owned the judgment; and alleges that the written assignment thereof upon which Salisbury predicated his rights as assignee was a forgery. Her complaint was filed November 25, 1904, and she avers that she did not learn of the revival of the judgment, and that no assignment of the original had, in fact, been made to Salisbury until October 9, 1903. She further avers that on August 13, 1903, Salisbury caused an execution to issue on the revived judgment, by virtue of which he caused a note belonging to her, of the value of $1,070, to be sold to his wife, Susan, for the sum of $570; but no credit was ever given upon the judgment on account of this sale. She further alleges that on August 13, 1903, Salisbury caused an execution to be issued and delivered to the sheriff of Larimer county, under and by virtue of which levy was made upon real estate belonging to her, which was thereafter sold under the execution to his wife for the sum of $5,500, and that under the certificate of purchase thus made, and after the time for redemption from such sale had expired, a sheriff's deed was executed and delivered to Mrs Salisbury. She alleges that the real estate so sold by the sheriff at the time of the levy thereon and sale thereof was worth the sum of $20,000, and that the price at which it was sold was so grossly inadequate and insufficient, as compared with its real value, as to render the sale void. She also alleges that on the 5th day of January, 1904, Rups filed a satisfaction of the judgment in the office of the clerk of the district court of Pueblo county. She prayed judgment to the effect that the judgment of revival be adjudged void that the court adjudge that no assignment of the original judgment was ever made by Rups to Salisbury; that the issuance of the executions and levies upon her property and sale thereof thereunder be declared void; that, in the event the judgment should be held valid, she have judgment giving her credit for the sum of $1,070, the value of the note sold that the sale of the real estate be set aside because the price at which it was sold was so grossly inadequate, as compared with its value, as to amount to a fraud upon plaintiff's rights; and that she have judgment for the possession of the real estate, etc. To this complaint the defendants answered. When the case was called for trial, the defendant Salisbury was placed upon the stand as a witness by plaintiff, for cross-examination. Thereupon the defendants interposed an objection to the introduction of any testimony upon the ground that the complaint did not state a cause of action, which objection was sustained, and judgment rendered that the plaintiff recover nothing by her action, and that it be dismissed at her costs. She brings the case here for review on error.

Chas. M. Bice, for plaintiff in error.

Geo. Salisbury, for defendants in error.

GABBERT, J. (after stating the facts as above).

It will be noticed from the foregoing synopsis of the complaint that plaintiff does not allege that she was not duly notified of the proceedings instituted by Salisbury in the district court of Pueblo county, which finally culminated in a judgment reviving the Rups judgment in his name as the assignee of Rups. True, she avers that she did not learn of the revival of the judgment, and that no assignment of the original had been made to Salisbury until in October, 1903, but that is not equivalent to stating that no process was issued and served upon her in the proceeding instituted by...