Lamping v. Keenan

• Decision Date: 03 December 1886
• Citation: 12 P. 434,9 Colo. 390
• Parties: LAMPING v. KEENAN.
• Court: Colorado Supreme Court

12 P. 434

9 Colo. 390

LAMPING v. KEENAN.

Supreme Court of Colorado

December 3, 1886

Appeal from county court, Lake county.

This was an action or replevin, brought by the plaintiff below Thomas Keenan, against the defendant, Joseph Lamping, for the recovery of a span of mules and a set of double harness. It was originally instituted before a justice of the peace, who gave judgment for defendant, Lamping. Keenan appealed to the county court, and upon trial there recovered a judgment awarding a return of the property, or, if a return could not be had, that he recover the sum of $95, the value of the property. The evidence shows that Thomas Keenan purchased the property from Martin Keenan, in his lifetime, who was the owner thereof, receiving a bill of sale dated September 21 1880, and that, before and at the time of receiving the bill of sale, the purchaser was in possession of the property that some time afterwards he leased the property to one Annie Gibbons, and then went to Kansas City. That Martin Keenan died soon after the sale; and, during the absence of the plaintiff, a creditor of the estate of deceased brought suit in attachment before a justice of the peace against the administrator, causing the writ of attachment to be levied upon the property while in the possession of said lessee that he recovered a judgment, caused an execution to be issued thereon, and the property in controversy so seized to be sold on such execution, and that defendant, Lamping, purchased the property at the constable's sale. In further support of the defendant's title, he was permitted to introduce in evidence, against the objections of the plaintiff, a lease of the mules in controversy to one Annie D. Griffen, purporting to have been excuted by the said Martin Keenan about one and a half months subsequent to his execution of the bill of sale to the plaintiff, Thomas Keenan. It was conceded that the property was in possession of the plaintiff's lessee, Annie Gibbons, at the time of the seizure on the writ of attachment. It was also conceded that no demand for the possession was made by the plaintiff prior to bringing the present action.

Charles S. Thomas, for appellant.

W. T. Rogers and G. H. Thompson, for appellee.

BECK, C.J.

This action having been commenced in a justice's court, no written pleadings appear in the case, but an inspection of the proceedings shows that the claims to the property in dispute set up by both parties to the controversy are precisely the same; that is to say, both parties claim ownership and right to possession by virtue there of, and both trace title to the same source. The property was originally owned by Martin Keenan, in his lifetime. The plaintiff, Thomas Keenan, claims to have purchased it from the owner direct; while the defendant, Lamping, claims to have purchased the same at an execution sale held pursuant to judicial proceedings against the administrator of said Martin Keenan, deceased. This latter proceeding was commenced by attachment, and the property was attached to satisfy the claim of a certain creditor of the deceased. The trial of this replevin suit, therefore, was on the merits; and the plaintiff succeeded in establishing a regular and valid title, with right of possession, while the defendant signally failed to establish either. The defendant's proof showed a personal judgment...