Poundstone v. Holt

• Decision Date: 11 June 1894
• Citation: 37 P. 35,5 Colo.App. 66
• Parties: POUNDSTONE et al. v. HOLT.
• Court: Colorado Court of Appeals

37 P. 35

5 Colo.App. 66

POUNDSTONE et al. v. HOLT.

Court of Appeals of Colorado

June 11, 1894

Appeal from district court, Rio Grande county.

Action by Clara E. Holt against John J. Poundstone and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Ira J Bloomfield, for appellants.

C.M. Corlett, for appellee.

BISSELL P.J.

This suit is the outgrowth of the litigation which sprung up between the different creditors of Garrison & Howard. Part were secured by sundry mortgages which the firm executed at the time of their failure, and the remainder were omitted from the preferred list. Some facts which are not properly before the court in this particular case will be suggested in order to make the controversy and decision perfectly intelligible. The principal question raised has just been disposed of in an opinion announced by the court in the case of Grocer Co. v. Garrison (decided at the present term of the court) 37 P. 31. A motion was filed in the present case for leave to file the printed abstract in that one for the purpose of bringing before the court, to aid the determination of this suit, the evidence taken therein. At the time of the trial the parties stipulated that the evidence in that case, in so far as it was material and relevant, might be used on the trial of the issue presented by the parties here. Presumably, that evidence was considered by the court below, but the parties failed to preserve it in the present record in such a way that it is legitimately before the court for consideration. It is also true that the bill of exceptions, as filed in this case, is authenticated in a manner which prevents us from considering any matters of fact suggested in the briefs. The certificate fails to state that the bill of exceptions contains all the evidence introduced, and in fact, by express statement, excludes exhibits which were probably offered. A copy of the bill of exceptions in the McCord-Bragdon Case was likewise not made a part of the present record, so that in these respects the court is very considerably hampered in the statement of its conclusions. In general, it may be said that in January, 1892, Garrison & Howard were merchants doing business in Garrison. In the latter part of the month they executed divers notes and mortgages, and delivered them to sundry of their creditors, who immediately took possession of their stock of merchandise, and of whatever other property the firm owned. The appellee, Holt was one of the number, and she evidently received a mortgage upon certain personal property, of the value of about $350. The property need not be specified. The security named the articles mortgaged, and, according to the judgment, possession was delivered to the mortgagee. Subsequently, the present appellants seized the property under a writ of attachment issued in a suit brought by Miles against the firm to recover a debt owed by the copartnership. The constable attempted to levy his process upon this particular property, took it into possession, and ultimately sold it, and the present action was brought to recover its value.

A good many questions are discussed by counsel, but the resolution of a few of them will serve to adjudicate the rights of the parties. The appellants contend that, according to the testimony in the record, the various mortgagees to whom Garrison & Howard had transferred their property turned their possession over to...