Seymour v. Goad

• Decision Date: 03 November 1919
• Docket Number: 9475.
• Citation: 67 Colo. 11,185 P. 263
• Parties: SEYMOUR v. GOAD, Sheriff.
• Court: Colorado Supreme Court

185 P. 263

67 Colo. 11

SEYMOUR v. GOAD, Sheriff.

No. 9475.

Supreme Court of Colorado

November 3, 1919

Error to District Court, Rio Grande County; Jesse C. Wiley, Judge.

Action by Edward Seymour against J. Frank Goad, Sheriff of Rio Grande County. Judgment for defendant, and plaintiff brings error.

Reversed and remanded, with directions.

James P. Veerkamp, of Monte Vista, and James D. Pilcher, of Alamosa, for plaintiff in error.

Jesse Stephenson, of Monte Vista, for defendant in error.

BAILEY J.

The action was by Edward Seymour, plaintiff in error here, to recover $1,500.00 from J. Frank Goad, as Sheriff of Rio Grande County, which Edward alleges is wrongfully withheld from him.

In his answer the defendant sets up that as Sheriff he had taken the money from the person of one William R. Seymour, who is a brother of Edward, when he arrested William upon a criminal charge; that as Sheriff he was retaining $850.00 of the money in dispute under an execution against William, and that by court order duly entered he had been directed to pay the balance, $750.00 over to William, and had done so. Trial was to the court, and the findings and judgment were for the Sheriff. That judgment is not here for review.

It appears that in November, 1917, plaintiff, Edward Seymour had on deposit in a Monte Vista bank, $2,000.00. He was then under arrest, and in an attempt to secure his release he undertook to put up a cash bond of $1,500.00. To this end he drew a check for that amount, payable to the bank, which check he gave to his brother, William R. Seymour, who exchanged it for a cashier's check payable to the clerk of the court. This check was subsequently returned and another issued payable to the Sheriff. This latter check was likewise surrendered, as was also another check for $500.00, signed by Edward, by his brother, William and for these two checks, for $2,000.00, covering the entire amount on deposit in the bank to the credit of Edward Seymour, another cashier's check, for $2,000.00, was issued to William, which later William turned into cash.

Shortly thereafter the brothers were arrested in Texas, and William was returned to Trinidad, where the $1,500.00 in question was found upon him by the Sheriff. While the money was in custody of the Sheriff an execution was levied against it, as the property of William R. Seymour.

While it is well settled that the verdict of a jury, or the conclusion of the court sitting in lieu thereof, will not be disturbed as to findings of fact upon controverted questions if there is sufficient competent evidence to support them, it is likewise equally true that where there is no conflict of testimony, either circumstantial or direct, as to material facts, the court or jury is not at liberty to disregard the evidence adduced and return findings wholly unsupported thereby.

In Hunt v. Milling, etc., Co., 1 Colo.App. 120, at page 124, 27 P 873, 875, the court, in discussing this question, said:

'This conclusion is not at all in conflict with the rule which has been so often declared by the appellate tribunals of this state--that they will not interfere with the verdict of a jury or the finding of the court upon questions of fact simply upon a conflict of testimony, or upon a question of the weight and preponderance of the evidence. It stands substantially uncontradicted in the record that Payne was given actual notice of the dissolution of the firm. The absence of a recollection on his part that such a conversation was had does not tend to shake or weaken the absolute testimony given by Mr. Hunt upon this subject. His direct and positive statement standing uncontradicted must be given full credit, unless there be something in the record which tends to overcome or weaken the force of that unimpeached

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