Inwood Industries, Inc. v. Priestley, 75--253

• Decision Date: 06 November 1975
• Docket Number: No. 75--253,75--253
• Citation: 545 P.2d 732,37 Colo.App. 78
• Parties: INWOOD INDUSTRIES, INC., a Colorado Corporation, Plaintiff-Appellee, J. De Beer & Son, Inc., et al., Intervenors-Plaintiffs, v. Gene PRIESTLEY, d/b/a Pikes Peak Sporting Goods, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 732

545 P.2d 732

37 Colo.App. 78

INWOOD INDUSTRIES, INC., a Colorado Corporation, Plaintiff-Appellee J. De Beer & Son, Inc., et al., Intervenors-Plaintiffs, v. Gene PRIESTLEY, d/b/a Pikes Peak Sporting Goods, Defendant-Appellant.

No. 75--253.

Colorado Court of Appeals, Div. III.

Nov. 6, 1975.

Rehearing Denied Dec. 4, 1975.

Review Granted Feb. 2, 1976.

No appearance for plaintiff-appellee or intervenors-plaintiffs.

David C. Vigil, Charles S. Vigil, Denver, for defendant-appellant.

RULAND, Judge.

Pursuant to C.R.C.P. 102(aa), defendant, Gene Priestley, d/b/a Pikes Peak Sporting Goods, appeals from a judgment denying his traverse and application to discharge an attachment and from a subsequent order disbursing a portion of the proceeds from sale of part of the attached property. We affirm in part and reverse in part.

Plaintiff, Inwood Industries, Inc., initiated the present action in August 1974 with the filing of a complaint alleging an indebtedness from defendant of $6,127.40 arising out of a contract. Attachment proceedings were also instituted pursuant to C.R.C.P. 102, and defendant's 'merchandise, equipment, stock in trade & Office Equipment' were subjected to a levy. Subsequently, within the 30-day time limit specified in C.R.C.P. 102(j)(1), three intervenor-plaintiffs filed complaints and affidavits in attachment against defendant.

No attempt was made to file either an application to discharge the writ of attachment or traverse within the time limitations of C.R.C.P. 102, which provided that the application to discharge must be filed 'at any time before the time for answer expires,' C.R.C.P. 102(y), and the traverse 'within twenty days after the service of the writ of attachment.' C.R.C.P. 102(p). C.R.C.P. 102 was then repealed and reenacted by our Supreme Court with substantial revisions on January 1, 1975. See 4 Colo. Lawyer 451 et seq. (Feb.1975).

At a hearing held on January 23, 1975, defense counsel stated that he intended to file a traverse pursuant to the revised rule on attachments which provides that both an application to discharge attachment and a traverse of the affidavit in attachment may be filed at any time before trial on the merits of plaintiff's complaint. See C.R.C.P. 102(n) and (w), as revised (1975 Supp.). However, inasmuch as the attached property was depreciating in value, defendant agreed that the attached property could be sold. Another hearing was scheduled for January 30 at which time further details relating to the sale of defendant's property were to be considered.

Defendant then filed his application to discharge on January 24 and his traverse on January 30, 1975. The trial at that time had been set for February 11, 1975, but according to the record before us has been continued.

Although a transcript of the January 30 hearing has not been included in the record, it appears that defense counsel did not appear. As a result of the hearing, a written order was entered on February 5, 1975, Nunc pro tunc January 30, 1975, whereby the trial court, insofar as relevant here, denied defendant's traverse and application to discharge the attachment on the ground that the attachment rules which were in effect prior to January 1, 1975, were applicable to the case at bar. Pursuant to former rule C.R.C.P. 102(s), the court also ordered the sale of the attached property.

A public sale was held in February 1975 at which only defendant's merchandise was sold. At the hearing on defendant's 'motion for a new trial' in March, the court ordered payment to the State of Colorado on a tax lien pursuant to a warrant of distraint and payment of the fees of the auctioneer. Defendant does not now contest this order nor the sale. At the same hearing, the trial court determined to hold in abeyance a decision on both payment of costs to the warehouse company for transportation and storage of the attached property pending sale and on payment of copying costs for the sale inventory.

Subsequent to this hearing, and after defendant had filed his notice of appeal, upon motion of intervenors-plaintiffs for sale of the remainder of the attached property, another hearing was held. During the course of this hearing the trial court ordered payment from the sale proceeds of the costs previously held in abeyance.

On this appeal defendant first contends that his traverse and application for discharge should not have been dismissed because they were timely under the January 1975 revisions to C.R.C.P. 102. We agree with the trial court's ruling.

In addition to changing the time limit within which the traverse and motion to discharge must be filed, our Supreme Court revised C.R.C.P. 102 in other respects. Insofar as material here, the revised rule would invalidate the writ obtained by plaintiff because it was issued by the clerk of the district court and not by the court itself, and because the writ failed to advise defendant of his right to traverse. See C.R.C.P. 102(e) and (f) (1975 Supp.). Additionally, one of the grounds for attachment alleged by plaintiff under the former rule, namely, that defendant refused to pay the value of goods upon delivery, See C.R.C.P. 102(b)(11), has been eliminated from the revised rule. See C.R.C.P. 102(c) (1975 Supp.). Finally, the revised rule requires that the affidavit set forth specific facts supporting the grounds of attachment, and plaintiff's affidavit merely alleges the grounds specified under the former rule without alleging specific facts. See C.R.C.P. 102(c) (1975 Supp.).

Defendant agrees that the right to obtain property by attachment or garnishment may be based upon Supreme Court rule. See Worchester v. State Farm Mutual Automobile Insurance Co., 172 Colo. 352, 473 P.2d 711. Prior to adoption of the Colorado Rules of Civil Procedure, attachment proceedings were governed by statute, See C.S.A.1935, Code of Civ.Proc. § 97 et seq., and an amendment which eliminated a ground for attachment was considered as not having retroactive effect. Day v. Madden, 9 Colo.App. 464, 48 P. 1053; Mulnix v. Spratlin, 10 Colo.App. 390, 50 P. 1078; ...