Susman v. Exchange Nat. Bank of Colorado Springs

• Decision Date: 07 July 1947
• Docket Number: 15546.
• Parties: SUSMAN v. EXCHANGE NAT. BANK OF COLORADO SPRINGS.
• Court: Colorado Supreme Court

183 P.2d 571

117 Colo. 12

SUSMAN v. EXCHANGE NAT. BANK OF COLORADO SPRINGS.

No. 15546.

Supreme Court of Colorado, in Department.

July 7, 1947

Error to District Court, City and County of Denver; Joseph J Walsh, Judge.

Proceeding by Yvette Susman, assignee of Credit Finance Industrial Bank wherein garnishment summons was served and wherein E. A Pring intervened. To review a judgment for the intervener Yvette Susman brings error. The intervener died, and the Exchange National Bank of Colorado Springs, Colo., as executor of the estate of E. A. Pring, deceased, was substituted in his stead.

Affirmed.

Graham Susman and Hyman D. Landy, both of Denver, for plaintiff in error.

Fred W. Varney, of Denver, for defendant in error.

HILLIARD Justice.

A proceeding in intervention involving money in a bank account, being held pursuant to garnishment. Findings and judgment were in favor of the intervener.

It appears that in February, 1931, an industrial bank was given judgment against and Taylor, in the sum of $1,965; that about five years subsequent thereto plaintiff in error became assignee of the judgment; that July 15, 1943, or seven years after the assignment, execution was issued on the judgment, and in aid thereof garnishment summons was served on a Denver commercial bank; that July 27, 1943, the bank answered that the judgment debtor had a balance of $728.66 on deposit with it, but that one E. A. Pring had served notice that said funds were his property, and that he intended to intervene in that behalf: that October 9, 1943, said Pring, proceeding pursuant to paragraphs (a) and C (c), of rule 24, and paragraphs (h) and (n), rule 103, Colorado Rules of Civil Procedure, filed a petition in intervention in which he alleged that he was the owner of the funds involved, and more particularly that July 7, 1943, he had issued and made payable to the order of the said Taylor, his check on the Exchange National Bank, Colorado Springs, in the sum of seven hundred fifty dollars, 'in trust for the sole and specific purpose of enabling * * * Taylor to use same for the purchase of five Durham milk cows for the account of petitioner, * * * from a person by the name of Peterson, who resided near Sedalia, Colorado,' and that Taylor had 'interviewed said Peterson and initiated a transaction to purchase said cows; but that prior to the time of completion of the said purchase for the account of this petitioner, said * * * Taylor deposited the check of this petitioner in his, the said Taylor's account in the Central Savings Bank and Trust Company * * *, and that the $728.00 found in said account by said writ of garnishment, and reported by said garnishee, was and is the proceeds of said check of this petitioner, and was and is the property and funds of this petitioner.' Intervener further alleged that the present instance was not different from 'other transactions over a period of several years between intervener and * * * Taylor, wherein Taylor has acted as agent and trustee for this intervener in the purchase of cattle, land and in numerous other transactions.'

Challenged below by motion to dismiss, the petition in intervention was adjudged to be sufficient. Answering, the judgment creditor again challenged the legal sufficiency of the petition, and for a second answer, alleged the facts of the garnishment to the effect already stated in this opinion, and that the garnishee had answered that it 'held to the credit of * * * Taylor, the sum of seven hundred twenty-eight dollars and sixty-six cents.' Denied that the intervener was the owner of said money, and denied generally otherwise. Subsequently, and with leave of court, an amendment to the answer was filed, which reads: 'It the funds impounded by the garnishment are the property of the intervener, then and in that event, the said intervener, E. A. Pring, is estopped from intervening in the above mentioned case, or making any claim to the proceeds of garnishment, or any part thereof, by reason of the fact that the said intervenor, E. A. Pring, by his acts and conduct, permitted the funds and bank account, which were subjected to garnishment, to be and stand in the name of the defendant C. H. Taylor, which said funds are subject to withdrawal only by the said defendant C. H. Taylor.'

By his own testimony, and that of Taylor and Taylor's grown son, the intervener supported the allegations of his petition. His check of the date alleged and in sum of $750, payable to the order of Taylor, and showing that it had been deposited to Taylor's credit in the garnishee bank, was admitted in evidence as an exhibit. The judgment creditor offered no evidence. After argument of counsel, the court found generally for the intervener, and particularly that the money involved belonged to the intervener. Finding otherwise in that regard, the record considered, as we are persuaded, would not have been justified. Indeed, the judgment creditor does not seriously contend that the evidence failed to support such finding. Rather, the contention is that the situation was such that the intervenor is estopped to lay claim to the money, hence, as argued, the evidence upon which the court made its findings, was incompetent.

But does the doctrine of estoppel operate here? In the view of the trial judge, it does not. Generally, as it is well to keep in mind, that doctrine 'is not regarded with favor and should be applied only when all the elements constituting an estoppel clearly appear.' Langley v. Young, 72 Colo. 466, 211 P. 640, 642. 'Estoppel can arise only where the one relying thereon has changed his position to his material detriment.' Thomas v. First Nat. Bank, 97 Colo. 474, 51 P.2d 589, 591. 'An estoppel operates only when the...