Raynolds v. Ray

• Decision Date: 22 December 1888
• Citation: 12 Colo. 108,20 P. 4
• Parties: RAYNOLDS v. RAY, Sheriff, et al.
• Court: Colorado Supreme Court

20 P. 4

12 Colo. 108

RAYNOLDS v. RAY, Sheriff, et al.

Supreme Court of Colorado

December 22, 1888

Error to district court, Chaffee county.

This was a suit by Frederick A. Raynolds, as assignee of Hartzell Bros. to enjoin Robert Ray, sheriff of Chaffee county, E. B Jones, and J. T. Blake from selling certain property by virtue of executions in favor of the two last named defendants against plaintiff's assignor. A temporary injunction was granted, but dissolved on final hearing, and judgment rendered for defendants. Plaintiff brings error.

H. W. Hobson and A. Macon, for plaintiff in error.

G K. Hartenstine, for defendants in error.

ELLIOTT J.

The vital question in this action is, who has the better claim to certain real property located in Chaffee county, Colo., belonging to Hartzell Bros., copartners, etc., the plaintiff, Raynolds, their assignee, or the defendant the sheriff of Chaffee county, who levied attachments thereon for certain creditors of said copartnership? The assignment was executed in Custer county on September 4, 1882. The writs of attachment were issued out of the county court of Chaffee county, and the sheriff made and recorded his levy in Chaffee county on September 5, 1882, a few hours before the articles of assignment were recorded in Chaffee county; and neither he nor the attachment creditors had any notice of any assignment until after the recording of such levy. The judgments first rendered in these attachment cases were adjudged void want of service of the writs of summons and attachment upon the defendants, and the sale of the property thereunder was perpetually enjoined by the district court of Chaffee county. Prior to this, however, these first judgments were vacated on motion of plaintiffs; and alias writs of summons and attachment were thereupon issued and duly served, January 17, 1883, and valid judgments were rendered thereon in February thereafter. To restrain the sale of the attached property under these latter judgments, the present action was brought by the assignee. These are the substantial facts. It is claimed in behalf of the assignee that the levy of the attachment writs on September 5, 1882, was void for all purposes; and that, after vacating the first judgments, the defendant must not only be served with writs of summons and of attachment, but that there must be also a fresh levy of the attachment writs.

We cannot admit this claim of the plaintiff in error. 'The requisites of an attachment of real estate are generally determined by statute.' Drake, Attachm. § 236. We are of opinion that by filing a copy of the writ of attachment, together with a description of the property to be attached, with the recorder of the county, a valid levy was made, and that a valid lien upon the property was thereby created. Code 1883, § 101; Emory v. Yount, 7 Colo. 107, 1 P. 686; Brown v. Tucker, 7 Colo. 30, 1 P. 221. To conclude otherwise is to disregard the purpose and largely destroy the efficacy of the attachment act. The main purpose of attachment proceedings is to secure a lien upon the property of a failing or fraudulent debtor; and to say that such a debtor must in all cases be notified of the service of the attachment writ, before a lien can be created, is to give him the opportunity of perpetrating the very wrong which the attachment may be intended to prevent. By the levy under a writ of attachment before the service thereof, the plaintiff acquires a provisional lien upon the property levied on; but, before a valid judgment can be rendered by which the attachment lien is preserved and made effective, there must be proper service of the summons and the writ of attachment. Moore v. Thayer, 6 How. Pr. 47.

Sections 99 and 101 of the Code, construed together, do not seem to be inconsistent with these views. Section 99 provides that alias writs may issue unless the defendant deposit the amount, or give security by an undertaking in an amount sufficient to satisfy the demand and costs, or in amount equal to the value of the property which has been or is about to be attached. Section 101 specifies how the sheriff shall proceed to execute the writ, if the undertaking mentioned in section 99 be not given by the defendant. A fair construction of these provisions would seem to justify the conclusion that the service of the attachment writ is required for the purpose of enabling the debtor to deposit the money sued for, and thus prevent the lien from taking effect; or, if the lien already exists, thus to secure its dissolution; and also to enable him, in case he shall see fit so to do, to traverse and put in issue the matters stated in the affidavit of attachment. In a majority of cases, the levy of the writ will either precede or be made simultaneously with the service thereof. In some cases, the officer may serve the writ before he makes the levy, and in such cases the statute provides that, if the amount of the claim be deposited, the levy shall not be made.

There was nothing in the conduct of the plaintiffs in the attachment suits indicating bad faith, or any intention on their part to waive or abandon their lien, nor were they guilty of laches in any of the proceedings. They acted with reasonable dispatch. True, they made a mistake in causing judgments to be entered before the summons and writs of attachment had been served; but when such mistake was discovered they proceeded with diligence to rectify the error by recalling the executions, vacating the judgments, and by suing out and serving alias writs of summons and attachment; so that, in less than six months after the levy of their writs of attachment, judgments were entered which are conceded to be in all respects regular and valid. Upon these judgments, executions were at once issued; and the defendant sheriff was proceeding to sell thereunder the property attached when enjoined by the present action. We think there was no unreasonable delay in obtaining service of summons or of the writs of attachment upon the defendants, nor was there any unreasonable delay in obtaining judgment and execution. We have noticed in this opinion only what we regarded as the principal assignment of error, for the reason that the dissenting opinion of the chief justice, filed herewith, satisfactorily presents the views of the court upon other points of the case.

For the reasons announced in this opinion the judgment of the district court is affirmed.

BECK C.J., ( dissenting.)

On and prior to the month of Septmeber, 1882, Frederick S. Hartzell and Wilbur J. Hartzell were engaged in a general banking business in the town of Silver Cliff, Custer county, under the firm name of Hartzell Bros. They were likewise the owners of the real estate involved in this action, situate at Salida, in Chaffee county. On September 4, 1882, they made an assignment of all their property, real and personal, to A. J. Rising, for the benefit of all their creditors. Mr. Rising accepted the trust, but on September 6th resigned the same, and Raynolds, the plaintiff in error, was on that day appointed assignee of the estate of said bankrupts by the judge of the district court of the Sixth judicial district. He accepted the appointment, qualified, and proceeded to execute the trust.

The deed of assignment to Rising was recorded in the office of the clerk and recorder of Custer county on September 5th, at 11:47 A. M.; and it is alleged in the complaint filed by Raynolds in this action that it was also recorded in the office of county clerk and recorder of Chaffee county on the same day. The dedendants in error E. B. Jones and J. T. Blake, being creditors of said Hartzell Bros., brought suit against them for the recovery of their respective demands, in the county court of Chaffee county, on September 5, 1882, at the same time causing writs of attachment to be issued and levied on certain real estate belonging to their debtors at Salida, in said Chaffee county. Copies of these writs of attachment, with the levies indorsed thereon, were filed for record in the recorder's office in Chaffee county on the same day, September 5, 1882; the writ in the Jones Case being filed at 9:20 o'clock A. M., and the writ in the Blake Case being filed at 9:30 o'clock A. M. Judgments by default were rendered against the Hartzells, September 18, 1882, and execution issued to the defendant in error Robert Ray, as sheriff of Chaffee county, who levied the same upon the attached real estate, and advertised it for sale thereunder. Raynolds, as assignee of the bankrupts, thereupon filed in the district court of Chaffee county a petition against said Robert Ray, sheriff, to enjoin the sale of the property, alleging, inter alia, that said judgments were entered up in the county court against the Hartzell Bros. by default, and without service of summons. A temporary writ of injunction thereupon issued, restraining the sales until the cause should be heard. Ray answered the petition, January 18, 1883, admitting that he had advertised the property for sale by virtue of the two executions, but alleging that the county court had, on November 22, 1882, vacated the judgments, and ordered the return of the executions, and that, in compliance with said order, he had returned the same, and prayed that the petition be dismissed. Thereupon Raynolds moved for judgment on the pleadings, in the district court; whereupon the sheriff and his successors in office were, by order of the court, perpetually enjoined from selling said real estate on the executions issued on the judgments entered by the county court on the 18th of September, 1882. The journal entries of the county court, made in these cases, recite that, it having been brought to the knowledge of the county court that the judgments were void because...