Love v. Tomlinson

Decision Date28 March 1892
Citation1 Colo.App. 516,29 P. 666
PartiesLOVE v. TOMLINSON.
CourtColorado Court of Appeals

Appeal from district court, Larimer county; ALBERT P. RITTENHOUSE Judge.

Action by George W. Tomlinson against Eph. Love to recover personal property taken under execution against plaintiff's vendor. Judgment for plaintiff. Defendant appeals. Affirmed.

E.A Ballard, for appellant.

J.M Davidson, for appellee.

RICHMOND P.J.

This was an action to recover the possession of 51 head of horses and 45 head of cattle, of the alleged value of $3,675, and damages in the sum of $35 for the unlawful detention. Suit was instituted by the appellee, George W. Tomlinson, who filed his complaint July 8, 1887. Appellant Love, defendant below, filed his answer to the complaint, alleging that he was the duly and legally qualified sheriff of Larimer county, and that on the 22d day of June, 1887, one John Delay commenced an action in the county court of that county against John T. Wray to recover the sum of $1,639.83, with interest, due Delay on account of payment made on a certain promissory note executed by Wray and by Delay as surety; that an attachment writ was issued in said cause, and levy made upon the property mentioned in the complaint, as the property of Wray; that on the 10th day of September, 1887, in said county court, judgment was rendered in favor of Delay for the full sum claimed, and the attachment was sustained. It is further alleged that Wray was and continued to be the owner of the goods and chattels described, and that being then and there insolvent, and contriving and intending to hinder, delay, and defraud his creditors, and confederating and conspiring with plaintiff, Tomlinson, he caused to be made a pretended and fraudulent sale, without any consideration whatever, of said goods and chattels, to plaintiff. Trial was had of the issue thus presented, and verdict rendered for the plaintiff, with damages for the sum of $35. Motion for a new trial overruled, and judgment entered, to reverse which this appeal is prosecuted. The assignments are: First. That the court erred in overruling the motion for a new trial; second, that the court erred in admitting testimony of witnesses, to which appellant objected at the time of trial; third, that the judgment was contrary to the law. Appellant, in his brief, discusses principally the error in admission of testimony.

During the progress of the trial the depositions of John H. Young and J.T. Wray were read, and, at the time of the reading of the depositions of Young, defendant objected to interrogatories 11 and 12, which, as appears from the abstract, were as follows: "Question 11. State whether or not you acted in good faith in selling said horses and cattle to said Tomlinson. Q. 12. Was or was not the sale made with an intent on your part to aid or assist the said J.T. Wray in hindering, delaying, or defrauding any of his creditors?" Also, during the trial and the reading of the deposition of Wray, defendant objected to the following interrogatory: "Q. In authorizing your agent to make the sale, did you have any intent to hinder delay, or defraud your creditors, or any of them?" It further appears that, during the trial, Tomlinson was recalled, and testified as follows, to which defendant objected: "I did not have any other purpose in buying this property from Wray than my own special benefit." It is insisted that the testimony responsive to this interrogatory was inadmissible. It will be observed that the objection is not made to the testimony, but to the interrogatory: that is, so far as the depositions of Wray and Young are concerned. Young was the agent of Wray, had charge of the property, was authorized by Wray to make a sale, and in pursuance of the authority made the sale of the property mentioned in the complaint to Tomlinson. Wray was the owner of the property, and indebted to Love, who was seeking to subject the property to the satisfaction of his judgment. The sole question in issue was whether or not the transfer so made by Young, as the agent of Wray, to Tomlinson, was made with intent to hinder, delay, and defraud creditors. This issue was determined in favor of plaintiff, and it is insisted that the testimony received in response to the interrogatories propounded was calculated to influence the jury, and for that reason the judgment should be reversed. It may be true that interrogatories of this character are not permissible, and we can concede that there is a division of opinion in the courts upon this question. The objection, in our opinion, to the interrogatories, comes too late. The taking of the depositions, the...

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5 cases
  • Sutherland v. Noggle
    • United States
    • North Dakota Supreme Court
    • December 30, 1916
    ... ... what his intent in fact was. 6 Enc. Ev. 130; Brown Bros ... v. Potter, 13 Colo.App. 512, 58 P. 785; Love v ... Tomlinson, 1 Colo.App. 516, 29 P. 666; Seymour v ... Wilson, 14 N.Y. 567 ...          Retention ... of possession of the ... ...
  • Brown v. Potter
    • United States
    • Colorado Court of Appeals
    • October 9, 1899
    ... ... adversely to our determination. This question received an ... examination at the hands of this court in the case of Love v ... Tomlinson, 1 Colo.App. 516, 29 P. 666. Therein, following New ... York, Massachusetts, Vermont, ... [58 P. 787.] ... and many other ... ...
  • Arkansas Valley Bank v. Esser
    • United States
    • Colorado Supreme Court
    • March 3, 1924
    ... ... issue, acceptance or not, and his testimony as to that intent ... was competent. Wig. Ev. §§ 581 and 1966 and context; Love v ... Tomlinson, 1 Colo.App. 516, 520, 29 P. 666; Brown v. Potter, ... 13 Colo.App. 512, 58 P. 785; Curran v. Rothschild, 14 ... Colo.App. 497, ... ...
  • Curran v. Rothschild
    • United States
    • Colorado Court of Appeals
    • February 12, 1900
    ... ... considered worth." The foregoing opinion was approved ... and followed by this court in the case of Love v. Tomlinson, ... 1 Colo.App. 516, 29 P. 666. In the latter case there was ... nothing on the face of the transaction to stamp it as ... ...
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