Sweeney v. Cregan

• Decision Date: 20 April 1931
• Docket Number: 12800.
• Citation: Sweeney v. Cregan, 89 Colo. 94, 299 P. 1058 (Colo. 1931)
• Parties: SWEENEY v. CREGAN et al.
• Court: Colorado Supreme Court

299 P. 1058

89 Colo. 94

SWEENEY v. CREGAN et al.

No. 12800.

Supreme Court of Colorado, En Banc.

April 20, 1931

Rehearing Denied June 8, 1931.

Error to District Court, Pueblo County; John H. Voorhees, Judge.

Suit by John F. Cregan against George H. Sweeney and another. Judgment for the plaintiff, and to review a judgment of contempt against defendant named, for refusing to be sworn and testify as a witness in supplementary proceedings in aid of execution, defendant George H. Sweeney brings error.

Judgment of contempt affirmed.

L. E. Langdon, of Pueblo, for plaintiff in error.

E. F Chambers and S. S. Packard, both of Pueblo, for defendants in error.

ALTER J.

George H. Sweeney, plaintiff in error, hereinafter referred to as defendant, and another were sued by John H. Cregan, defendant in error, hereinafter referred to as plaintiff. Upon the trial, judgment was entered in favor of the plaintiff, who caused an execution to be issued thereon, which execution except for a small amount realized in garnishment proceedings, was returned 'nulla bona.' Plaintiff then filed his verified petition for supplemental proceedings in aid of execution, which resulted in an order commanding defendant to be and appear on a day and at a place certain before the judge of the court, there to answer concerning his property.

(1) Defendant moved to set aside and vacate the order for his examination, because no notice of the application therefor had been given him, which motion was denied; (2) defendant questioned the sufficiency of the petition for supplemental proceedings, which was overruled; (3) defendant refused to be sworn and testify as a witness, because he contends that section 265 of the Colorado Code of Civil Procedure, 1921, is unconstitutional and void, in that it is violative of section 18 of [89 Colo. 96] article 2 of the Colorado Constitution. He was adjudged guilty of contempt of court, and sentenced to the county jail. The ruling upon the motions and the judgment of contempt are assigned as error.

1. Section 265 et seq., Colorado Code of Civil Procedure 1921, provides that when an execution is returned unsatisfied, the judgment creditor shall be entitled to an order from the judge of the court requiring the judgment debtor to appear before him, at a day and place certain, to answer concerning his property. The limitations upon the right to issue the order are not herein involved, and therefore are not noted. The statute makes no provision for affidavits, petitions, or other pleadings, and no suggestion as to the method to be used in calling to the judge's attention the fact that the execution is returned unsatisfied; the only prerequisite to the granting of the order for examination is the return of the execution unsatisfied. The proceeding herein involved was ancillary and auxiliary to the original action. Hexter v. Clifford, 5 Colo. 168, 173. Supplemental proceedings are for the purpose of making effectual the judgment rendered in the main or original action, and, jurisdiction of the defendant having been acquired in the original proceeding, that action is considered as still pending until the judgment rendered thereon is fully discharged. The Code provides for no notice of application for an order, and none is required. The order is one which may issue ex parte. Hexter v. Clifford, 5 Colo. 168, 173; High v. Bank of Commerce, 95 Cal. 386, 30 P. 556, 29 Am.St.Rep. 121; Goodall v. Demarest, 2 Hilt. (N.Y.) 534; Ackerman v. Green, 201 Mo. 231, 240, 100 S.W. 30; Seyfert v. Edison, 47 N. J. Law, 431, 1 A. 502; 21 Enc. Pl. & Pr. 127; 23 C.J. 845; 4 Wait's Practice 137; 3 Freeman on Executions (3d Ed.) 2169 et seq.

2. The petition for an order for the examination of the defendant contained all the allegations necessary, together with much extraneous matter, and was invulnerable to a demurrer for insufficient facts. No error was committed in so holding.

3. Defendant appeared at the time and place designated in the order for his examination, but, upon being ordered by the court to be sworn and testify, refused to do so, giving as his reason that section 265 of the Code of Civil Procedure was unconstitutional because violative of his constitutional rights and guarantees. Section 265, supra, does not purport to grant a judgment creditor the right to require his debtor to answer questions which might subject the...