People v. Barton

• Decision Date: 26 March 1894
• Citation: 4 Colo.App. 455,36 P. 299
• Parties: PEOPLE, to Use of REPUBLICAN PUBLISHING CO., v. BARTON et al.
• Court: Colorado Court of Appeals

36 P. 299

4 Colo.App. 455

PEOPLE, to Use of REPUBLICAN PUBLISHING CO., v. BARTON et al.

Court of Appeals of Colorado

March 26, 1894

Error to district court, Arapahoe county.

Action by the people of the state of Colorado, for the use of the Republican Publishing Company, against Elias R. Barton and others, on a sheriff's bond. Defendants obtained judgment. Plaintiff brings error. Reversed.

L.B France, for plaintiffs in error.

Sullivan & May and E.E. Schlosser, for defendants in error.

THOMSON J.

This is an action upon a sheriff's bond. The complaint alleges the election of the defendant Barton, as sheriff of Arapahoe county, and the execution by him and the other defendants of a bond conditioned for the faithful performance of his official duties. On June 15, 1891, the Republican Publishing Company, in a suit instituted by it against the Continental Land & Security Company, caused a writ of attachment to be issued and delivered to Barton, as sheriff, commanding him to attach the property of the Continental Company in Arapahoe county, to satisfy the Republican Company's demand; and the breach assigned is that, although the Continental Company was at the time possessed of property subject to execution sufficient to satisfy the demand, and of which Barton had notice, yet he failed to make any attachment of the property, and neglected to return the writ until November 5, 1891, at which time it was returned without any levy having been made under it. It is also alleged that on November 16, 1891, the Republican Company recovered judgment in its suit against the Continental Company, and that on July 8, 1891, during the lifetime of the writ of attachment, and while it was in Barton's hands the Continental Company became wholly bankrupt and insolvent and has ever since so continued, so that satisfaction of the judgment could not be obtained. On January 19, 1893, the defendants demurred to the complaint, for the reasons that there was no legal capacity to sue, and that the facts stated did not constitute a cause of action. Afterwards, on February 6, 1893, at the hearing upon the demurrer filed, the defendants obtained leave of court to amend it, by adding to it the additional ground that it appeared from the complaint that the cause of action which it stated was barred by the statute of limitations. The demurrer, as amended, was sustained, and the defendants had judgment. The two original grounds of demurrer seem to have been abandoned, and the only...