Salisbury v. La Fitte
| Decision Date | 08 April 1912 |
| Citation | 123 P. 124,22 Colo.App. 90 |
| Parties | SALISBURY et al. v. LA FITTE. |
| Court | Colorado Court of Appeals |
Appeal from District Court, Larimer County; James E. Garrigues Judge.
Action by Marie La Fitte against George Salisbury and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
J.C. Gunter and J.M. Maxwell, both of Denver for appellants.
In the district court, the appellee, plaintiff in the action, recovered judgment against the defendants therein Salisbury and Wildeboor, who have appealed from that judgment.
1. Defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action; and, that objection being renewed here by a suitable assignment of error, it will be considered at the outset. The complaint, which was filed August 27, 1907, was one to recover damages for alleged conversion by the defendants of a promissory note, secured by deed of trust on real estate executed to a public trustee. The objections urged against the sufficiency of the complaint, are, first, that it failed to show that the plaintiff was in possession, or had the right to immediate possession, of the note at the time of the supposed conversion; second, that it did show that the note and trust deed were in custodia legis, at the time of the alleged conversion thereof, and consequently that plaintiff could not have had such possession or right of possession, as would sustain her subsequent action for conversion of the same. Neither of these objections appears to be valid. The first is based upon the initial allegation of the complaint that "she (plaintiff) is the owner and entitled to possession of" the described note. But the sufficiency of the complaint cannot be determined from that allegation alone. It was further therein alleged that the note and trust deed were levied upon by the sheriff of Pueblo county, "and garnished in the hands of said public trustee, who then had possession for the purpose of foreclosure," and that the same were given over to said sheriff by order of court, upon an execution in favor of defendant Salisbury against the plaintiff, "to be sold by the sheriff and proceeds applied on said execution or judgment," and that Salisbury wrongfully prevented the sale of the note, and induced the sheriff to turn over to him the note and trust deed, and, after that was done, "wrongfully and fraudulently converted said note and deed of trust to his own use and benefit," etc. Construing the complaint liberally, as we are bound to do upon this demurrer, it appears therefrom in a general way that the securities in controversy were taken from the possession of plaintiff's bailee by garnishee process under execution against appellee in favor of Salisbury, and, pursuant to an order of the court out of which the process issued, turned over to the sheriff for sale the proceeds to be applied on the execution, and that Salisbury in some manner induced the sheriff to turn the note and trust deed over to him, without any sale, and thereupon converted the securities to his own use. If these allegations are true, Salisbury was clearly liable to appellee for the wrongful conversion of the securities; and it could not avail him to say that they were in the custody of the law by virtue of the levy and garnishment proceedings under execution if he in fact obtained possession of the securities by inducing the sheriff to violate his duty under the order of the court and the writ.
It was further alleged that the note was amply secured and was worth its face value with accrued interest; and that at some time, not stated, "the defendant Salisbury wrongfully and fraudulently transferred or delivered the note and deed of trust to the defendant Wildeboor," followed by allegations to the effect that the latter acquired no better title than Salisbury had, and that each of the defendants had wrongfully converted the securities. It may be conceded that the allegations of the complaint were wholly uncertain and ambiguous; but it was sufficient to state a cause of action as against the objections made on behalf of appellants.
2. It is further insisted for the appellants that the district court erred in its ultimate findings and judgment against them, as well as in overruling their motion for a new trial; and the argument in that behalf requires a further investigation of the pleadings and proceedings.
The defendants filed an answer to the complaint, which contained six separate alleged defenses. Appellants rely on the first and fourth of those defenses only; and the determination of the questions arising on the appeal does not demand special consideration of the rest of the answer.
By the first defense, defendants denied each and every allegation of the complaint, "except as herein expressly admitted and stated." The defense did not indicate what was included in the exception from the general denial, and for that reason was evasive and insufficient, if attacked by motion or demurrer. The Code expressly authorizes "a general or specific denial of each material allegation in the complaint intended to be controverted by the defendant." Mills' Ann.Code, § 56. It is believed to be correct practice, when the defendant does not wish to deny all allegations of the complaint, to admit a part and deny generally the remainder. But, when that form of denial is adopted, it should definitely appear what is admitted, and what is intended to be controverted. It is probable from an examination of the entire answer that the exception from the general denial in the first defense was intended to refer to an admission, in the so-called sixth defense of the answer, of the allegations of the complaint respecting the levy upon the note and trust deed by the sheriff of Pueblo county, under execution, and the order of court in the garnishment proceeding, turning them over to the sheriff for sale, etc. To be sure, each separate defense must be regarded as if it stood alone, and should be complete in itself, unless it distinctly and intelligibly refers to what is stated elsewhere in the answer; but, inasmuch as no objection was made to the form of the denial, by motion or demurrer, it may be regarded as putting in issue the material allegations of the complaint. Bessemer I.D. Co. v. Woolley, 32 Colo. 437, 444, 76 P. 1053, 105 Am.St.Rep. 91.
The fourth defense of the answer set forth in ipsis verbis an "order and judgment," alleged to have been duly given and made on the 21st day of December, 1903, in an action then pending in the district court of Pueblo county "between George Salisbury, plaintiff, and Mary La Fitte, defendant, and Belle Buckley, intervener, and A.T. Stewart, garnishee." This judgment recited a hearing upon the petition of Belle Buckley, intervener, "the answer of George Salisbury, plaintiff," as well as the "traverse of Mary La Fitte disclaiming any interest in the matter in controversy," the trial of "the issue in said cause" by a jury, and the verdict of the jury finding "the issues joined in favor of the plaintiff, George Salisbury, and against the intervener, Belle Buckley." Whereupon the Pueblo county district court found that the note therein described (being the same note described in the complaint in the instant case) "was the property of Mary La Fitte at the time of the service of the garnishment process herein on the fourteenth day of August, 1903," and that the note was in the custody of the clerk of the court. And it was adjudged that said note be turned over to the sheriff of Pueblo county to be sold "upon a writ of venditioni exponas to be issued out of this court, or upon a special order in pursuance of the judgment and decree herein to be prepared by the clerk of this court," and the application of the proceeds of the sale by the sheriff was directed. The defense further alleged that Mary La Fitte mentioned in said judgment is the plaintiff in the instant action, and that the note and deed of trust mentioned is the property sued for herein; that said Mary La Fitte filed a "traverse," alleging that she was the agent of Belle Buckley in placing the note and deed of trust in the hands of the public trustee for foreclosure, and Belle Buckley filed a petition of intervention to the same effect; that on January 25, 1903, "said note and deed of trust was duly sold by the sheriff of Pueblo county, Colo., to Susan R. Salisbury, at a public sheriff's sale," for $590, "said Susan R. Salisbury being the highest and best bidder at said sale," and "that said sale was duly published" in a newspaper mentioned, and the sale was "in strict compliance with the said judgment and according to law," and that the sheriff "acted fairly and honestly, and without any direction from George Salisbury, in the sale of said note and deed of trust to said Susan R. Salisbury." It was said at the conclusion of the defense that the judgment was pleaded by the defendants "as a former adjudication of the plaintiff's complaint and the allegations therein contained," etc. Counsel for the appellants do not here insist that the judgment in the garnishment proceedings, as set forth in the fourth defense, was well pleaded as an adjudication of the matters alleged in the complaint in the present action, or, at least, they give no reason why it should be so considered. Certain it is that the supposed former judgment pleaded upon its face adjudicated nothing against the plaintiff in the present action in contradiction of the claim of right asserted in her complaint. It appears to have been determined by the judgment in question that Belle Buckley was not the owner of the securities, but that the plaintiff in the present action was such owner at the time of the institution of the garnishment...
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