Seeleman v. Hoagland

• Decision Date: 04 December 1893
• Citation: 19 Colo. 231,34 P. 995
• Parties: SEELEMAN v. HOAGLAND.
• Court: Colorado Supreme Court

34 P. 995

19 Colo. 231

SEELEMAN v. HOAGLAND.

Supreme Court of Colorado

December 4, 1893

Appeal from district court, Jefferson county.

Action of replevin by Charles R. Seeleman against John A. Hoagland. From a judgment for defendant, plaintiff appeals. Reversed.

The other facts fully appear in the following statement by GODDARD, J.:

Charles R. Seeleman, plaintiff, alleges that on the 17th day of August, 1889, he was the owner, and entitled to the possession, of certain goods and chattels, of the value of $1,500; that on that day the defendant wrongfully took them from his possession. The defendant answered (1) by a general denial, and (2) justified the taking, as sheriff of Jefferson county, under and by virtue of a certain writ of attachment issued in an action wherein C. M. Henderson & Co. are plaintiffs, and Jenkin Edwards is defendant, and also alleged 'that said goods, chattels, and personal property were at the time of said levy the goods, chattels, and personal property of the said Jenkin Edwards, and were, as against the creditors of the said Jenkin Edwards, liable to be levied upon for the satisfaction of said debt, as defendant is informed and verily believes,' etc. To this answer plaintiff filed a replication. The case was tried to a jury. It appears from the evidence that on the 3d day of August 1889, Jenkin Edwards was the owner of the property in controversy; that on that day Seeleman purchased it from him for a valuable consideration. The defendant was permitted to attack this sale on the ground of fraud. Upon the conclusion of the evidence, plaintiff requested the court to give the following instruction: 'No. 4. The court instructs the jury that there is no question of fraud or bad faith on the part of the plaintiff made by the pleadings in this case; and you have, therefore, nothing to consider as to this. But the important and controlling question is whether the plaintiff was in fact the owner of the property in question at the time of the attachment of the same by the defendant for C. M Henderson & Co., as alleged in the answer herein, or whether the same was then the property of Jenkin Edwards.' Counsel for defendant thereupon asked leave of the court to file the following amendment to his answer, which was allowed, over the objection of counsel for plaintiff 'Says that the said property levied upon was, at the time it was so levied upon, the property of the said Jenkin Edwards, and not the property of the plaintiff. The defendant further says that the title and possession of said property was theretofore, by said Jenkin Edwards, transferred to plaintiff without consideration, and for the purpose of cheating, hindering, delaying, or defrauding the creditors of the said Jenkin Edwards.' Whereupon, the court refused to give the instruction, and proceeded to instruct the jury upon the theory that the question of fraud was involved in the case. Verdict was rendered in favor of defendant for a return of the property, and, in case such return could not be had assessed the defendant's damages at $1,500. Motion for new trial was overruled. Thereupon, the defendant remitted so much of the amount found as was in excess of the sum of $863.19, and judgment was entered accordingly. To reverse this judgment, plaintiff below brings the case here on appeal.

Joseph Mann and W. A. Dier, for appellant.

Lipscomb & Hodges, for appellee.

GODDARD J., (after stating the facts.)

Numerous errors are assigned, but we deem it necessary to notice only those that are predicated upon the refusal of the court to give instruction numbered 4, asked by plaintiff, and the submission of the question to the jury whether the sale of the goods in controversy was fraudulent as to the creditors of Edwards, under the issues presented by the pleadings. Counsel for appellee insist that that question was properly submitted--First, because, in the action in replevin, the plaintiff must recover, if at all, upon the strength of his own title, and under a general denial any state of facts may be shown to defeat such title; and, second, if the correctness of this proposition be denied, that in their answer, as amended, fraud is sufficiently averred.

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