Liss v. Wilcoxen

• Decision Date: 01 February 1873
• Citation: 2 Colo. 85
• Parties: LISS v. WILCOXEN.
• Court: Colorado Supreme Court

2 Colo. 85

LISS v. WILCOXEN.

Supreme Court of Colorado

February, 1873

Error to Probate Court, Gilpin County.

UNLAWFUL detainer in probate court of Gilpin county. Plaintiff in error, who was defendant below, moved to quash the complaint but as he afterward answered, no question presented by that motion was considered in this court.

At the trial the plaintiff offered the docket of a justice of the peace showing a judgment as follows:

BELLE CABLE v. JAMES R. GRANT.

TERRITORY OF COLORADO, County of Gilpin.} ss.:

October 12, 1876, summons issued, made returnable on the 18th instant, at 10 A. M., and delivered to A. H. Jones, constable (the service was good), October 18, 1870, at 10 A. M., and now this case came on for trial. Plaintiff appeared by I. N Wilcoxen, attorney, defendant appeared in person and by John M. Ginn, attorney. After hearing the evidence and argument of attorneys, it is considered by the court that the plaintiff have and recover of the defendant the sum of $170 debt, and the sum of $22.82 costs.

To this the defendant objected that the record does not show jurisdiction in the justice as to the subject-matter, but the court permitted it to be read. Other proceedings before the justice upon the same judgment were given in evidence, and it appeared that the transcript of the judgment had been certified into the district court, and that an execution issued out of that court on said judgment was levied on the property described in the complaint on the 19th day of January, 1871; that on the 11th of February, 1871, the property was sold under that execution to Wilcoxen, the plaintiff below, and that the said Wilcoxen obtained a sheriff's deed for the same. The defendant admitted that he was in possession of the property, and that plaintiff had made demand in writing for the same. The defendant put in evidence a deed from James R. Grant to Daniel Grant, dated November 6, 1869; also a deed from Daniel Grant to defendant dated February 4, 1871; he also gave evidence tending to prove that James R. Grant occupied the premises before he took possession, and that he, the defendant, had been in possession since the date of the deed to him; thereupon the defendant rested, and the plaintiff, in rebuttal, gave evidence tending to prove that the deed by James R. to Daniel Grant was without consideration, and made with intent to hinder and delay the creditors of him, the said James R., and therefore fraudulent and void under the statute relating to frauds and perjuries.

The plaintiff also gave evidence tending to prove that Liss, the defendant, had notice of the circumstances under which the property was conveyed by James R. to Daniel Grant, and that he held an agreement from the said Daniel by which the purchase-money paid by him was to be refunded by the said Daniel, if the said defendant should be dispossessed of the premises under the sale upon execution issued on the Cable judgment.

The cause was tried to the court without a jury, and the judgment was for plaintiff.

Mr. L. C. ROCKWELL, for plaintiff in error.

Mr. I. N. WILCOXEN, in person.

WELLS J.

1. It is insisted that the court below erred in overruling the motion interposed by the plaintiff in error to quash the complaint. It is sufficient to say as to this, that by pleading over, the error in this ruling, if any, was waived.

2. It is argued that the court below erred in receiving the transcript of the justice's judgment, through the execution, upon which, out of the district court, the plaintiff below claimed: as ground of objection to this transcript, it is said it nowhere appears thereby that the...