Nisbet v. Sigel-Campion Live Stock Com'n Co.

• Decision Date: 13 February 1912
• Citation: 123 P. 110,21 Colo.App. 494
• Parties: NISBET, Sheriff (WORK, Intervener), v. SIGEL-CAMPION LIVE STOCK COMMISSION CO.
• Court: Colorado Court of Appeals

123 P. 110

21 Colo.App. 494

NISBET, Sheriff (WORK, Intervener), v. SIGEL-CAMPION LIVE STOCK COMMISSION CO.

Court of Appeals of Colorado

February 13, 1912

Rehearing Denied April 8, 1912

Appeal from District Court, City and County of Denver; Geo. W Allen, Judge.

Action by the Sigel-Campion Live Stock Commission Company against Alexander Nisbet, sheriff, in which Robert M. Work, trustee in bankruptcy of Abe Becker, alias Tom Johnson, intervened by petition. Petition of intervener dismissed, and judgment rendered for plaintiff, and defendant and intervener appeal. Affirmed.

Thomas B. Stuart, Chas. A. Murray, both of Denver, and Robt. M. Work, of Ft. Morgan, for appellants.

Goudy &amp Twitchell and J.H. Burkhardt, all of Denver, for appellee.

WALLING J.

This action was brought by the appellee against the appellant Nisbet, as sheriff, to recover possession of personal property, and damages, under chapter 5, Mills' Annotated Code. The amended complaint of the plaintiff (appellee here) set forth two separate causes of action, both based upon the same transactions, and differing only in the manner of detailing the facts supposed to entitle plaintiff to the judgment prayed.

Omitting formal and immaterial matters, the following facts were alleged in the amended complaint: On the 22d day of July, 1905, the plaintiff, a live stock commission company, doing business at the union stockyards in Denver was lawfully possessed of 370 horses of the description and value stated in the complaint. The plaintiff claimed a special property in the horses, as the consignee thereof, in the nature of a factor's lien, for the amount of certain drafts drawn on and paid by plaintiff, on account of the consignment of the horses to plaintiff, besides freight and shipping charges, incurred in the transportation of the horses from Mackey, Idaho, to Denver, paid by plaintiff, expenses paid by it for the feeding and care of the horses, and its commission. Prior to the date mentioned, one Abe Becker, apparently acting for one Tom Johnson, and in the name of said Tom Johnson, had arranged to purchase the horses in Idaho; and, in pursuance of an arrangement between the plaintiff and Becker, plaintiff paid sight drafts drawn upon it by Becker, who drew said drafts in the name of Tom Johnson, per Abe Becker, to the aggregate amount of $9,431.50, for the purpose of paying the purchase price for the horses, except $1,000 theretofore paid thereon by Becker, and except about $1,500, due on drafts remaining unpaid. Under his agreement with the plaintiff, said Becker shipped and consigned the horses from Mackey, Idaho, to the plaintiff, at Denver. The horses arrived at the Union stockyards, in Denver, on the morning of July 22, 1905, and were delivered to the plaintiff, as factor and consignee, prior to the seizure thereof by the defendant, and remained in plaintiffs possession "until said defendant wrongfully seized and took possession thereof, as herein stated." The money paid on the drafts, as aforesaid, was paid by plaintiff to complete the payment of the purchase price for the horses; and the other sums paid as aforesaid were necessarily expended by the plaintiff for the protection of the property and plaintiff's special interest therein, as consignee, and in the performance of its duty as such consignee. The defendant Nisbet, who was the duly elected, qualified, and acting sheriff of the city and county of Denver, seized the horses in the possession of the plaintiff, and took them out of plaintiff's possession at said Denver Union Stockyards, on July 22, 1905, "under a pretended writ of attachment in a pretended suit, wherein the Union Stockyards National Bank of South Omaha is plaintiff, and Abe Becker, alias Tom Johnson, is defendant," and said sheriff refused to redeliver the horses to plaintiff upon its demand therefor, and still detained them in his possession at the time of the commencement of the action. An answer was filed to the amended complaint, wherein the defendant admitted the allegations with respect to the plaintiff's corporate organization and business and the official capacity of the defendant, also the seizure of the horses under writ of attachment, and denied all other material allegations in the complaint. In what was designated as the "third and further answer to the first and second causes of action" the answer alleged the due issuing of a writ of attachment to the defendant, as sheriff, in the action of the Union Stockyards National Bank of South Omaha against Abe Becker, alias Tom Johnson, upon a promissory note, then pending in the district court of the city and county of Denver, and that, under said writ of attachment, the defendant levied upon and took into his possession the horses in controversy, and retained possession of them from July 22 until July 25, 1905, when they were taken from him under the plaintiff's writ of replevin. This defense further alleged that the horses were the sole and exclusive property of Becker, and that the plaintiff had not at any time any ownership or interest therein, or claim thereto or lien thereon; and alleged a fraudulent combination between Becker and the plaintiff to ship the horses to Denver in such manner as to prevent Becker's creditors, and particularly the attaching bank, from subjecting the horses to the payment of their claim against Becker, in furtherance of which fraudulent purpose they made use of the name of Tom Johnson, as pretended consignor; that said Tom Johnson had no interest whatever in the horses, and that the use of his name in that transaction by the plaintiff was "purely bogus, fictitious, and fraudulent, and was made solely for the purpose of assisting the said Becker in defrauding his creditors." The answer also states that the horses were shipped to Denver by Becker, and were in the latter's possession at the time of the levy under the writ of attachment; and that the plaintiff's pretense that it was in possession of the property at the time of the levy thereon was a part of the scheme to defraud Becker's creditors, and to cover up and conceal the property, and that any money claimed to have been paid out by the plaintiff on drafts, or for freight and feeding, or otherwise, was the money of Becker and not of the plaintiff. The answer prayed judgment for the recovery of the possession of the horses, or for their value, and for damages and costs. The replication to the answer admitted the official character of the sheriff, that a writ of attachment "issued in a pretended suit wherein the Union Stockyards National Bank of South Omaha, Neb., was plaintiff, and one Abe Becker, alias Tom Johnson, was defendant, came into the hands of the defendant, as such sheriff," and that the defendant held possession of the property in dispute for the time alleged, and, except as to the allegations specifically admitted, denied each and every allegation of the answer. "For a second and further reply," the replication stated facts showing that Becker was insolvent at the time of the attachment alleged in the answer, and within four months thereafter filed his petition in bankruptcy in the United States District Court for the district of Colorado, and was thereon adjudged a bankrupt; and it was averred that, by reason of the adjudication of bankruptcy, the attachment became and was null and void. It appears from the record that the demurrer interposed by the defendant sheriff to the last-mentioned "second and further reply" of the plaintiff was sustained, and that portion of the replication was not reinstated by amendment or otherwise. Prior to the filing of the amended complaint, the appellant Robert M. Work intervened in the action by petition, which was later amended. The plaintiff (appellee) answered the amended petition in intervention, and the intervener replied to that answer. The bill of exceptions shows that the cause came on for trial in the district court before the court and a jury, the plaintiff and defendant appearing by their respective attorneys, and the "intervener, Robert M. Work, trustee in bankruptcy of the estate of Abe Becker, bankrupt, appearing in person." It appears from the record that during the progress of the trial an order was entered dismissing the petition of the intervener at his costs. The intervention proceedings will be more fully considered in investigating the separate appeal of the appellant Work. It will prevent confusion in determining the questions presented upon the record, if the controversy as between the plaintiff and defendant shall be kept separate at all points from that between the plaintiff and the intervener. After both plaintiff and defendant had rested their cases respectively upon the evidence adduced at the trial, plaintiff's counsel moved that the court instruct the jury to return a verdict in favor of the plaintiff, finding the plaintiff entitled to the possession of the horses in controversy, and defendant's counsel likewise moved for a directed verdict in his behalf for the possession of the horses or their value as alleged in the complaint. The defendant's motion for a peremptory instruction was based upon the propositions, first, that the arrangement with Becker was entered into by the plaintiff, "knowing or having ample means of knowing" that said Becker was insolvent, and was attempting, by using a false name, to conceal the transaction from his creditors, and to hinder, delay, and defraud them; and, second, that the evidence failed to show that plaintiff ever took from Becker the "actual, open, notorious, and unequivocal possession required by the statute of frauds, prior to the levy of the attachment writ of the defendant." The motion of the defendant for a peremptory instruction in his favor was overruled, and the...