Hurd v. McClellan

• Decision Date: 28 February 1890
• Citation: 23 P. 792,14 Colo. 213
• Parties: HURD v. McGLELLAN et al.
• Court: Colorado Supreme Court

23 P. 792

14 Colo. 213

HURD v. McGLELLAN et al.

Supreme Court of Colorado

February 28, 1890

Commissioners' decision. Appeal from district court, Arapahoe county.

W T. Hughes, for appellant.

R S. Morrison, for appellees.

PATTISON C.

It appears from the abstract of record and arguments in this case that on April 27, 1885, appellant recovered a judgment against Job C. McClellan, one of the appellees, for the sum of $4,437 and costs. From this judgment an appeal was taken and an appeal-bond filed, with the other appellees as sureties, which contained the following condition: 'Now if the said Job C. McClellan shall duly prosecute said appeal, and moreover, pay the amount of said judgment, costs, interests, and damages, rendered and to be rendered against said Job C. McClellan, in case the said judgment shall be affirmed by the said supreme court, then the above obligation to be null and void, otherwise to remain in full force and virtue.' On April 9, 1886, the appeal was dismissed for failure to file transcript, etc. Thereupon this action was brought upon the appeal-bond, and an attachment issued. Motion was made to quash the writ because '(1) no attachment lies upon an appeal-bond; (2) an appeal-bond is not a written instrument requiring the direct payment of money.' The court sustained the motion, and dissolved the attachment. From this order this appeal was taken.

The sole question to be determined by this court is whether an appeal-bond containing the condition above recited is a written instrument for the direct payment of money, within the meaning of subdivision 14 of section 92 of the Code of Civil Procedure. Appellant contends that the provision cited was borrowed from California, and the supreme court of that state has decided an attachment will issue in aid of a suit brought upon an appeal-bond. He invokes the principle that whenever a statute is adopted from another state the construction given to that statute by the courts of that state is also adopted. The principle is correct, as a general rule, (Stebbins v. Anthony, 5 Colo. 348;) but the premises upon which appellant predicates his proposition are erroneous. The 14th subdivision of section 92 of the Code was enacted in 1881 as an amendment to the original statute. It created a new substantive cause for attachment. It reads as follows: 'In all actions brought upon overdue promissory notes, bills of exchange, other written instruments for the direct payment of money, and upon book-accounts, the creditor may have a writ of attachment issued upon complying with the provisions of this section.' The provision of the California Code, to which reference is made, reads as follows: 'In an action upon a contract, express or implied, for the direct payment of money, where the contract is made or is payable in this state,' etc. Harst. Pr. § 538. The language of the two sections is in no sense similar. The California provision applies to all contracts for the direct payment of money, whether written or unwritten express or implied. The Colorado provision applies only to written contracts, and specifically mentions such contracts as overdue promissory notes, bills of exchange, other written instruments for the direct payment of money, etc. Clearly, this provision cannot be said to have been adopted from California. The question of construction, therefore, is an original one. The meaning of the words 'other written instruments for the direct payment of money' should be construed in connection with the context. Other instruments are specifically mentioned. It is clear that the statute was intended to apply to...