Priestley v. Inwood Industries, Inc.
| Decision Date | 20 September 1976 |
| Docket Number | No. C--878,C--878 |
| Citation | 560 P.2d 822 |
| Parties | Gene PRIESTLEY, d/b/a Pikes Peak Sporting Goods, Petitioner, v. INWOOD INDUSTRIES, INC., a Colorado Corporation, et al., Respondents. |
| Court | Colorado Supreme Court |
David C. Vigil, Charles S. Vigil, Denver, for petitioner.
No appearance for respondents.
We granted certiorari to review the opinion of the Colorado Court of Appeals found in Colo.App., 545 P.2d 732. We affirm, but for reasons other than those upon which the court of appeals based its decision.
On August 22, 1974 respondent Inwood Industries, Inc. (called the plaintiff) filed in the District Court of El Paso County, Colorado, a complaint to recover judgment in the amount of $6,127.40 for advertising furnished Gene Priestley, d/b/a Pikes Peak Sporting Goods (called the defendant). At the same time the plaintiff filed an affidavit in attachment. On the following day the clerk of the court issued a writ of attachment (conditioned on the furnishing of bond), and on August 24, 1974, acting under the writ, the sheriff attached the merchandise and equipment at defendant's place of business. The return on the writ discloses that, contemporaneously with the seizure under the attachment writ, service of the writ was made upon the chief clerk and general manager of the defendant.
Three checking accounts of defendant were seized under writs of garnishment which were issued in the same proceeding.
On September 26, 1974 the other respondents filed complaints as plaintiff-intervenors, claiming amounts due from defendant for merchandise purchased.
On November 26th and 27th, 1974 the defendant filed answers to the complaints of all of the respondents. The issues thus made have not been tried.
From prior to the time the action was filed until December 31, 1974, C.R.C.P. 102(p) provided that the defendant was allowed 20 days after service of the writ of attachment upon him to file a traverse to the matters alleged in the affidavit upon which the writ was based. On December 19, 1974, section 102 was readopted as amended 'effective January 1, 1975,' providing, Inter alia, that at any time before trial the defendant may file his traverse to the affidavit in attachment. 1975 Cum.Supp C.R.S.1973 (Vol. 7), C.R.C.P. 102. It is to be noted that, under the provisions of the former rule, the traverse to the plaintiff's affidavit was to be filed on or before September 13, 1974.
On January 23, 1975, attorneys for the parties appeared before the trial judge in connection with the sale of the attached property and other issues. Counsel for the defendant then stated that the defendant was willing that the property be sold, but asked that he be permitted to arrange for the sale of the property in order to obtain a better price than might be obtained at public auction. In answer to the inquiry, 'you are not contesting at all our agreement to sell the property and the method of sale', defense counsel responded: Accordingly, the court continued the matter until January 30, 1975, at 3:30 p.m.
In a hearing held on March 6, 1975, the court stated that counsel 'was present on the 30th of January when this order was stipulated and agreed upon among counsel and thereafter he had notice of the same all the way through.' The order just referred to by the court was entered on February 5, 1975, Nunc pro tunc January 30, 1975. This order, Inter alia, directed that 'the attached property' be sold at public auction on February 21, 1975 at 10:00 o'clock a.m. at a stated place in Colorado Springs. The defendant was given the right to secure and submit written bids.
At the time of the sale and apparently at the solicitation of the defendant, the parties stipulated that...
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Tommerup v. Albertson's, Inc.
...v. H. W. Hammond Co., 564 P.2d 958 (Colo.App.1977); In re Asterbloom, 63 Nev. 190, 165 P.2d 157 (1946). See also Priestly v. Inwood Industries, Inc., 560 P.2d 822 (Colo.1976). If these letters and payments are not admissible as evidence of or as tending to establish liability, they are most......
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Mountain Stone Co. v. H. W. Hammond Co., 76--405
...'cut off rights or privileges conferred by statute.' Johnson v. Neel, 123 Colo. 377, 229 P.2d 939 (1951). See also Priestley v. Inwood Industries, Inc., Colo., 560 P.2d 822 (announced September 20, 1976). Moreover, we view § 38--22--123, C.R.S.1973, as totally inapplicable to the facts of t......
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People v. Masamba, s. 76--312
...assert that such requirements have not been complied with by failing to object thereto at the proper time. See e.g., Priestley v. Inwood Industries, Inc., Colo. 560 P.2d 822 (announced September 20, 1976); Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971); Johnson v. Neel, 123 Colo. 377,......
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COLORADO RULES OF CIVIL PROCEDURE
...Court, 189 Colo. 217, 539 P.2d 1254 (1975); Inwood Indus., Inc. v. Priestley, 37 Colo. App. 78, 545 P.2d 732 (1975), aff'd, 191 Colo. 543, 560 P.2d 822 (1976); Smith v. Bridges, 40 Colo. App. 171, 574 P.2d 511 (1977); Sherman v. District Court, 637 P.2d 378 (Colo. 1981); In re Brantley, 674......
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Rule 102 ATTACHMENTS.
...the new rule has no retroactive effect. Inwood Indus., Inc. v. Priestley, 37 Colo. App. 78, 545 P.2d 732 (1975), aff'd, 191 Colo. 543, 560 P.2d 822 (1976). But the supreme court neither approved nor disapproved of this holding and, therefore, the holding of the court of appeals has no prece......
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RULE 1
...Court, 189 Colo. 217, 539 P.2d 1254 (1975); Inwood Indus., Inc. v. Priestley, 37 Colo. App. 78, 545 P.2d 732 (1975), aff'd, 191 Colo. 543, 560 P.2d 822 (1976); Smith v. Bridges, 40 Colo. App. 171, 574 P.2d 511 (1977); Sherman v. District Court, 637 P.2d 378 (Colo. 1981); In re Brantley, 674......