Gibbons v. Ellis

• Decision Date: 04 June 1917
• Docket Number: 8575.
• Citation: 165 P. 783,63 Colo. 76
• Court: Colorado Supreme Court
• Parties: GIBBONS et al. v. ELLIS.

165 P. 783

63 Colo. 76

GIBBONS et al. v. ELLIS.

No. 8575.

Supreme Court of Colorado, En Banc.

June 4, 1917

Error to Court of Appeals.

Motion to quash a levy under execution by Elizabeth M. Gibbons and another against Eva Prince Ellis. From a judgment of the Court of Appeals (26 Colo.App. 454, 145 P. 285) sustaining the levy, and reversing the decision of the trial court allowing the motion to quash, the plaintiffs bring error. Judgment of Court of Appeals reversed, and that of the trial court affirmed, and cause remanded to trial court.

T. J O'Donnell, J. W. Graham, and Canton O'Donnell, all of Denver, for plaintiffs in error.

J Howard Dana, G. Dexter Blount, and Harry S. Silverstein, all of Denver, for defendant in error.

BAILEY J.

This is a review on error of a judgment of the Court of Appeals sustaining a levy under execution in favor of Eva Prince upon 3,333 shares of stock of The Joseph Gibbons Consolidated Mining Company, as the property of Joseph Gibbons. These are in substance the facts: The judgment upon which execution issued was a deficiency foreclosure judgment in favor of Eva Prince, now Eva Prince Ellis, against Elizabeth Gibbons and Joseph Gibbons. Execution was begun by garnishment of the Joseph Gibbons Consolidated Mining Company; its return showed that 3,333 shares of the company stock, then standing on its books in the name of John F. O'Connor had been in litigation in the district court, and by judgment and decree there it has been determined that O'Connor was pledgee thereof, and that the company was required to re-issue the shares to Gibbons or his order upon compliance with the terms of redemption stipulated in the decree. The sheriff thereupon levied upon the shares in favor of Mrs. Ellis, and advertised them for sale. The Gibbonses, joined by Joseph Bordeleau, filed a motion to quash the levy on the ground, among others, that the shares of stock were not subject to be sold under levy and execution; under this subdivision counsel argued that the stock in question was in custodia legis and, therefore, exempt from levy and sale. Upon the hearing it appeared that the interest of Gibbons in the shares had been transferred in writing to Bordeleau. That instrument set out that the stock certificates were in the registry of the court at the time of the transfer, that they were to be delivered to Bordeleau, upon redemption in conformity with the terms of the decree in Gibbons v. O'Connor, under which they were held, and for which redemption Bordeleau had deposited in the registry of the court the necessary amount, some $5,800.00.

The motion to quash was allowed, and that decision was reversed by the Court of Appeals in Ellis v. Gibbons, 26 Colo.App. 454, 145 P. 285. Elizabeth M. Gibbons and Joseph Bordeleau appear here as plaintiffs in error from the Court of Appeals judgment, and Mrs. Ellis as defendant in error, and they will be so referred to herein.

In the opinion of the Court of Appeals it was stated that the record failed to show that the decree providing for the disposition of the shares was before the trial court when the motion to quash the levy was determined. Defendant in error, however, does not deny this. That decree was rendered, and the motion to quash allowed, in the same court and by the same judge. There can be no doubt that at the hearing of the motion the trial court had actual knowledge of all the provisions of the decree, and of the facts and circumstances connected with the entire transaction. It is not necessary to assume that the judge had to depend upon memory for these facts, as it is not possible to conceive that the court heard the motion without having before it, and taking judicial notice of, its records in a previous case involving the same property. The court would necessarily take notice of the fact that the stock levied upon was the same that had been involved in the former action, that the certificates had been deposited with the clerk of the court, and that Bordeleau had deposited the money to redeem them as assignee of Gibbons, in precise conformity with the terms of the original decree. These facts are not disputed; indeed, there is no controversy over them. As to whether they may be taken judicial notice of, being part of the court's records, Wigmore on Evidence, in Vol. 4, § 2579, says:

'However, for reasons of convenience, where controversy is unlikely, and the expense of a copy would be disproportionate, courts are often found taking notice of the tenor or effect of some judicial proceeding, without requiring formal evidence. Since this dispensation is not obligatory on the part of the court, and since it must depend more or less on the practical notoriety and certainty of the fact under the circumstances of each case, little uniformity can be seen in the instances.'

The proceedings of the trial court in the litigation respecting these shares was in the nature of a foreclosure, in which it determined the rights of O'Connor as pledgee and of Gibbons as the original owner of the shares, in these terms:

'* * * That in case the said defendant, John F. O'Connor, shall abide by and perform this decree, and shall within thirty days from this date bring the said three thousand three hundred and thirty-three (3,333) shares of stock into the registry of this court duly assigned to the said Joseph Gibbons, to be delivered to the said Joseph Gibbons, upon the payment into the registry of this court for the use of him, the said O'Connor, of the amount found due to the said O'Connor as hereinaforesaid, and if the said Joseph Gibbons shall not perform the said decree and shall not pay the said sum as hereinaforesaid within the time herein fixed, then and in that event, the right of redemption shall cease and determine and be at an end, and this cause shall stand dismissed out of this court.'

By the decree the mining company was required to re-issue the stock to Gibbons or his assignee upon compliance with the redemption provisions. While the decree was in process of enforcement, through redemption of the stock by Gibbons, or pending his failure to do so within the time limit, the attempted levy upon the shares was made by garnishment of the mining company.

There is no statement in the certificate to the bill of exceptions that all the evidence is contained therein, and this court is bound to assume, in the absence of such certificate, that there was sufficient evidence to justify the court in the conclusion reached. This alone would be sufficient to warrant the affirmance of the judgment of the trial court. Every reasonable and necessary intendment will be resolved in favor of the propriety of such judgment. Martin v. Force, 3 Colo. 199; Webber v. Emmerson, 3 Colo. 248; Behymer et al. v. Nordloh, 12 Colo. 352, 21 P. 37; Colby v. Thomson, 16 Colo.App. 271, 64 P. 1053.

If, however, under the decree the stock was in custodia legis at the time of the levy it was not subject to execution, and we will consider the matter from this standpoint.

In National Bank v. Londonderry Company, 50 Colo. 85, 114 P. 313, certain funds which had been placed in the registry of the court were ordered deposited in a bank pending the issue of a controversy over them. In discussing the status of this fund so deposited the court said:

'The funds borrowed were in the custody of the court, and the bank which came into court and borrowed this money with knowledge of the conditions under which it was acquired, made itself a quasi party to the action, and was subject to the orders and decrees of the court; and is estopped to deny that it had not become such a quasi party to the suit. In such case, it was not necessary that a separate suit should be brought; in fact, under repeated decisions of the federal courts, and in some states where the question has been passed upon, it is held that no separate or outside suit could have been brought to disturb these funds. Corbitt v. Farmers' Bank et al. [C. C.] 114 F. 602; Jones v. Merchants' Nat. Bank, 76 F. 683 [22 C.C.A. 483, 35 L.R.A. 698]; Allen v. Gerard, 21 R.I. 467 [44 A. 592, 49 L.R.A. 351, 79 Am.St.Rep. 816]; Tuck v. Manning, 150 Mass. 211 [22 N.E. 1001, 5 L.R.A. 666]; Curtis v. Ford et al., 78 Tex. 262 [14 S.W. 614, 10 L.R.A. 529].'

In Jones v. Merchants' Nat. Bank, supra, attempt was made to attack a similar deposit of money from the registry, and although these deposits were made under special statutes, the court declared the fund immune from seizure on common law principles:

'Independently of all statutory provisions, the plain and well known principles of the general law, especially as administered in equity, furnish sufficient sanction and protection to each, and each is in all respects declared by the law to be as exempt from the process of the litigant, without the consent of the court first obtained, as though it had always remained in the personal custody of the court's immediate officials.'

In Corbitt v. Farmers' Bank et al., supra, a similar attempt to attach funds deposited by court order was disposed of in the following language:

'The question presented by the motion to abate the attachment in this cause is whether moneys paid into court pending litigation in regard thereto, and placed by order of the court in its registry or some other designated depository, pursuant to law, are the subject of attachment emanating

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