German Nat. Bank of Denver v. National State Bank of Boulder

• Decision Date: 13 June 1892
• Citation: 3 Colo.App. 17,31 P. 122
• Parties: GERMAN NAT. BANK OF DENVER v. NATIONAL STATE BANK OF BOULDER.
• Court: Colorado Court of Appeals

31 P. 122

3 Colo.App. 17

GERMAN NAT. BANK OF DENVER v. NATIONAL STATE BANK OF BOULDER.

Court of Appeals of Colorado

June 13, 1892^[1]

Appeal from district court, Boulder county; S.S. DOWNER, Judge.

Action by the National State Bank of Boulder against the German National Bank of Denver, garnishee, on a promissory note. Judgment for plaintiff. Defendant appeals. Reversed.

Hartzell & Patterson, for appellant.

R.H Whiteley, for appellee.

BISSELL J.

W.G Motley was indebted to the National State Bank of Boulder, in 1890, on a promissory note which fell due in December. In the following January the bank brought suit on the note. By a proper proceeding under the statute it sued out a writ of attachment to aid in the collection. The writ ran, however against W.J., and not against Motley, with the middle initial "G.," or with his first name written in full. The German National Bank of Denver was garnished under that process by a notice which ran against W.J. It answered through its cashier that it was not indebted to W.J. Motley. The Boulder Bank traversed the answer, and this issue was tried before the court, which rendered a judgment against the German National Bank for the money which was on deposit in that institution to the credit of W.G. Motley at the time the process of garnishment was served. The judgment was rendered without any amendment of the process or proceedings. The court deemed an amendment entirely unnecessary, and held the variance to be totally immaterial. The appeal is from this judgment.

The stability of the law depends upon the rigor with which the courts and the profession adhere to precedents which in their scope and applicability are decisive of the case in hand. Notwithstanding the universal recognition accorded to this legal aphorism, instances are not infrequent where courts have refused to be controlled by the law as it was anciently written, when it is plainly seen to be inapplicable to the conditions of modern society. It seldom happens that a case is presented which so well illustrates the force of the maxim, cessante ratione legis, cessat ipsa lex. It was anciently written, both in historical and legal records, that a man had but one name. David, Terah, Napthali and Jacob were rulers and prophets. William and Rufus and John were ancient kings. It is historically true that surnames were almost unknown in Europe and in England until the Norman conquest. Instances of their existance are not common even in the Domesday book, and it was not until the statute of Henry V. concerning writs and indentures that the use of surnames may be said to have been firmly established in the law of England. Even as late as the beginning of the eighteenth century many families in Yorkshire had no other name than the Christian. Out of these facts sprang the law which is found laid down in the early authorities that the middle letter formed no part of the name of any person. In other words, in conformity with the then existing custom, the court said that a man was known by his first name, and accuracy in that respect was all that the law required. The law and the decisions, which were the outgrowth of the existing conditions of society, can manifestly have no application to our modern commercial organizations.

The wide extension and rapid increase of population, the great and unprecedented growth of commercial transactions, have compelled the use of different forms, and the adoption of different methods to distinguish individuals. The middle name, or the middle letter, is as much a part of a man's name in this part of the present century as either his Christian or his surname. The result is that the more modern authorities in the eastern and commercial states have adjudged that the middle letter, or the middle name, is as essential to the accuracy of the writ as either the Christian or the surname. It would seem that when the question arises as to the rights to be secured by a process of attachment served on a third person whose position has changed prior to judgment, it...