Stephens v. Parvin

• Decision Date: 07 November 1904
• Citation: Stephens v. Parvin, 33 Colo. 60, 78 P. 688 (Colo. 1904)
• Parties: STEPHENS et al. v. PARVIN.
• Court: Colorado Supreme Court

78 P. 688

33 Colo. 60

STEPHENS et al. v. PARVIN.

Supreme Court of Colorado

November 7, 1904

Appeal from District Court, Arapahoe County; Samuel L. Carpenter Judge.

Action by Margaret T. Parvin against Henry J. Stephens and others.Judgment for plaintiff.Defendants appeal.Affirmed.

Sam B Berry and Teller & Dorsey, for appellants.

George C. Manley and C. F. Clay, for appellee.

STEELE J.

In the year 1885 E. B. Parvin recovered judgment against Henry J Stephens and Isaac N. Large in the sum of $2,000.Execution was issued, and returned satisfied as to the sum of $3.75.Transcripts of the judgment were filed with the county clerks of Arapahoe and Boulder counties.The judgment was subsequently assigned to Margaret T. Parvin, who in the year 1900 brought her action in the district court of Arapahoe county to subject property standing in the name of Alice S Stephens and certain corporations to the payment of the judgment.The defendants' demurrer to the amended complaint was overruled, and motion of the plaintiff to strike portions of the defendants' answer was granted.The cause was then referred to A. J. Rising, referee, to report the testimony and his finding of law and fact.The referee found in favor of plaintiff, and the defendants' motion to set the report aside was overruled, and decree was entered in accordance with the findings.The case is brought here by appeal, the defendants alleging error, which we shall consider in the course of the opinion.We shall not consider those assignments of error relating to the findings of the referee, because we are of opinion that we should not disturb such findings.There was oral testimony and documentary evidence upon which the findings could be based, and the rule is well settled that the finding of the referee is entitled to the same weight as that of a judge or jury, and that upon appeal the finding will not be disburbed if it is supported by competent evidence.

The demurrer to the amended complaint alleges, first, 'That there is another action pending between the plaintiff herein and the defendants for the same cause, as will appear from the records of this honorable court;' second, 'The complaint shows upon its face that there is a defect of partiesdefendant;' third, 'That several causes of action have been improperly united in said complaint;' fourth, 'The amended complaint does not state facts sufficient to constitute a cause of action;' fifth, 'The amended complaint is ambiguous, unintelligible, and uncertain.'The demurrer, except as to the fourth ground, is itself insufficient, and should be disregarded.Irwine v. Wood, 7 Colo. 477, 4 P. 783;Henderson v. Johns, 13 Colo. 280, 22 P. 461.

The fourth ground of demurrer was properly overruled.The complaint, we think, does state a cause of action.It is urged that the proceedings provided for in chapter 20 of the Code are ample to afford the plaintiff relief, and that, as the remedy at law is adequate, equity can have no jurisdiction; and further that, unless the complaint shows that plaintiff has exhausted his legal remedies, the action is not well stated.In the case of Emery v. Yount, 7 Colo 107, 1 P. 686, it is held that a court of equity will not interfere to set aside a conveyance on the ground of fraud, at the suit of a general creditor, where the debtor has other property subject to execution, and in such case a bill which fails by proper averment to allege insolvency, or facts sufficient to indicate that the judgment cannot be collected without equitable aid, is fatally defective, and the defect is not cured by evidence of insolvency.Other authorities have held that, before a creditors' bill can be filed, an execution must be returned nulla bona.The fact that the writ has been returned unsatisfied is not sufficient.The return must show, as a reason for its being unsatisfied, that the officer could find no property whereon to make a levy.The complaint in the case at bar fails to allege the insolvency of H. J. Stephens, or facts sufficient to indicate that the judgment cannot be collected without equitable relief, nor does it show that execution has been returned nulla bona; and, if the plaintiff were a general creditor, the complaint would be insufficient.But the plaintiff is not a general creditor.He caused to be filed transcripts of his judgment in the county where the real estate in controversy is situated, and by so doing he secured a lien upon the legal and equitable...