Mosconi v. Burchinell
| Decision Date | 10 February 1896 |
| Citation | 7 Colo.App. 435,43 P. 912 |
| Parties | MOSCONI v. BURCHINELL. |
| Court | Colorado Court of Appeals |
Appeal from district court, Arapahoe county.
Replevin by Louis Mosconi, as assignee of Antonio and Joseph Sarcone against William K. Burchinell. Judgment for defendant, and plaintiff appeals. Affirmed.
G.Q Richmond, for appellant.
Bicksler McLean & Pershing, for appellee.
Appellant claimed a stock of goods by an alleged assignment claimed to have been made by Antonio and Joseph Sarcone. Appellee, as sheriff, levied an attachment upon the goods, at the suit of creditors, after appellant, as assignee, had taken possession. Appellant sued out a writ of replevin. A trial was had, resulting in a judgment for the plaintiff (appellant). An appeal was taken to this court, where the judgment was reversed, and cause remanded. See Burchinell v Mosconi, 4 Colo.App. 401, 36 P. 307. The case was retried, and is again here on appeal.
On the former appeal, for reasons stated in the opinion, and on the authorities cited, the attempted assignment to appellant, as assignee, was held void and inoperative. Nothing has subsequently occurred to change the conclusion then reached, and on a second examination we are fully satisfied with its correctness; nor is such conclusion in any manner attacked on this appeal. If not acquiesced in, it is regarded as conclusive of the question. Appellant, by his counsel, now urges a reversal on the following grounds: (1) That the assignee was an officer of the court, and that the sheriff had not obtained permission of the court to levy attachments; (2) that the want of such permission was made the basis of a motion to dismiss, which was overruled, and is claimed to have been error.
The attempted assignment was under the act of 1885. Sess.Laws 1885, p. 43. The claim of counsel is based upon section 11 in which is the provision that the assignee shall at all times be subject to the order and supervision of the court or judge, etc. The mistake or error of the learned counsel was in assuming that appellant was an assignee. To invest him with that character, and the title and control of the property, a deed of assignment complying with the law was necessary. It is the origin, the foundation, by which he becomes assignee. The deed having been declared void and inoperative, he was not vested with the position or title to the property, was a mere volunteer, and any interference...
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Damaskus v. McCarty-Johnson Heating & Engineering Co.
... ... Kinney v. Mercantile Co., 76 Colo. 136, 230 P. 127; Palmer v ... McCarthy, 2 Colo.App. 422, 31 P. 241; Burchinell v. Mosconi, ... 4 Colo.App. 401, 36 P. 307; and Mosconi v. Burchinell, 7 ... Colo.App. 435, 43 P. 912. In none of these cases was the ... question ... ...
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Kinney v. Yoelin Bros. Mercantile Co.
...It is held in Palmer v. McCarthy, 2 Colo.App. 422, 31 P. 241; Burchinell v. Mosconi, 4 Colo.App. 401, 36 P. 307, and in Mosconi v. Burchinell, 7 Colo.App. 435, 43 P. 912, that, the assignee does not file the inventory, he is not an assignee; the deed to him is void. The plaintiff in error t......