Ph. Zang Brewing Co. v. Bernheim

• Decision Date: 09 March 1896
• Citation: 44 P. 380,7 Colo.App. 528
• Parties: PH. ZANG BREWING CO. v. BERNHEIM et al.
• Court: Colorado Court of Appeals

44 P. 380

7 Colo.App. 528

PH. ZANG BREWING CO. v. BERNHEIM et al.

Court of Appeals of Colorado

March 9, 1896

Appeal from district court, Arapahoe county.

Action by Benjamin Bernheim and others against the Ph. Zang Brewing Company for money had and received.There was judgment for plaintiffs, and defendant appealed.Affirmed.

Grant L. Hudson, for appellant.

Rogers Cuthbert & Ellis and Frank L. Woodward, for appellees.

BISSELL J.

The condition of the present record removes any necessity for more than a simple statement of the proceeding, and of the single error on which the appellant has a right to rely.Three errors are assigned, but the first, which is based on the alleged error committed by the court in overruling the motion for judgment on the pleadings, is the only matter open to consideration.The other two really rest on the alleged insufficiency of the evidence to support the judgment, and on objections taken to its introduction.There is no bill of exceptions in the record, and these matters are consequently not open to discussion.The proceedings are somewhat out of the usual order, and we do not intend to express any opinion respecting their regularity or propriety, except so far as we shall hold the appellant debarred from taking advantage of an irregularity, if any exists.Stated briefly, the issue springs from the averments of a petition which was filed by the appellees, Bernheim Bros. and Uri, wherein it is made to appear they were judgment creditors of Herman Ell, for a sum named.It is also set up that there were certain other judgments, in favor of other parties(Oppenheimer Bros. and Rab Bros.), for specific sums.Executions were issued on the several judgments, and money collected which satisfied the Oppenheimer judgment in full, and the Rab judgment partially, and left a balance which was, according to the appellees' contention, properly applicable to the payment of their judgment.This money was in the hands of the sheriff.He failed to apply it on the appellees' claim but turned it over to a constable who held an execution in favor of the Zang Brewing Company, and the money ultimately went to the brewing company, which applied it to the satisfaction of their claim.This diversion of the money was averred to be in wrong of Bernheim Bros., and they set up the facts tending to show the money should have been paid to them; that the brewing company were not entitled to hold...