Herr v. Sullivan

• Decision Date: 20 February 1899
• Citation: 26 Colo. 133,56 P. 175
• Parties: HERR et al. v. SULLIVAN.
• Court: Colorado Supreme Court

56 P. 175

26 Colo. 133

HERR et al. v. SULLIVAN.

Supreme Court of Colorado

February 20, 1899

MOTION TO vacate writ of assistance. Denied.

For former opinion, see 54 P. 637.

PER CURIAM.

While the proceeding in error was pending in this case, plaintiffs in error filed a supplemental transcript, seeking to have reviewed the action of the court below in issuing a writ of assistance to enforce its decree, and put the purchaser at the sale made thereunder in possession of the property in controversy. We denied their motion to vacate the order granting the writ, with leave to renew the same upon final hearing. At the final hearing, counsel for plaintiff in error failed to renew the motion and to further discuss the question. Regarding the issuance of the writ as of no importance, in view of the final disposition we made of the case, we omitted any mention of the matter in our former opinion. 54 P. 637. Counsel who how represents plaintiffs in error apprehends that the order granting the writ may be construed as an adjudication of whatever right they may have acquired to the possession of the mill property under and by virtue of the foreclosure of the Allis & Co. trust deed which was had pending the action; and, that this question may be set at rest, he asked that the motion to vacate the order granting the writ be further considered, and the order vacated, and the writ of assistance, so far as the mill property is concerned, be recalled, unless it shall be held that the sale under the Allis & Co. trust deed is absolutely void. This application was entertained, and on the ___ day of _____, 1899, the original motion to vacate the order was sustained, and an order entered recalling the writ. Defendant in error now moves the court to vacate and set aside this order, which, upon more mature reflection, we think should be done.

The facts disclosed by the supplemental record are, in brief, as follows: After the entry of the final decree in the cause. Amos J. Rising, who by the decree was appointed trustee, duly advertised, and on November 16, 1896, offered for sale, the real estate and property described in the decree, and sold the same to Lincoln B. Livingston, who was the highest and best bidder. On November 21st he executed and delivered to Livingston his trustee's deed conveying to him the elevator property, discharged of all liens and the mill property, subject to the trust deed securing the indebtedness of E. P. Allis & Co., which by the decree was established, the amount of which was litigated in the cause and found to be the sum of $39,375.54, and as a...