Talpey v. Doane
| Decision Date | 01 February 1876 |
| Citation | 3 Colo. 22 |
| Parties | TALPEY, impl., etc., v. DOANE et al. |
| Court | Colorado Supreme Court |
Error to the District Court of Arapahoe County.
DOANE & Company, the defendants in error, began a suit by attachment in the district court of Weld county against Oliver S. Glenn and Rufus E. Talpey, who entered a special appearance for the purpose only of quashing the writ. A herd of cattle was seized under the writ, and Lockhart T. Glenn and George O Talpey filed an interplea, under the statute, claiming to be the owners of the property attached. The interpleaders stipulated with Doane & Company to change the vanue for the trial of the interplea. The district court of Weld county, in making the order changing the venue, directed the original cause, as well as the matter of the interplea, to be sent to the district court of Arapahoe county, and transferred all the papers to that court. Subsequently, Doane & Company took a default in the district court of Arapahoe county, against Oliver S. Glenn and Rufus E. Talpey; a jury was also impaneled and damages assessed against them in the sum of $8,621.69, upon which judgment was entered in favor of Doane & Company. To reverse this judgment Rufus E. Talpey sued out this writ of error.
The plaintiff, in support of the position that a writ of attachment made returnable dies non is void, cited among other authorities, Porter v. Foley, 21 How. 393, and Ins.
Co. v Mordecai, id. 195. A number of errors were assigned, but they are not discussed in the opinion of the court.
Messrs. FRANCE & ROGERS, for plaintiff in error.
Messrs. CHARLES & DILLON, for defendants in error.
On the 22d day of September, A. D. 1870, a writ of attachment in favor of defendants in error, against the plaintiffs in error, was issued out of the district court of Weld county, returnable at a district court, to be holden at Evans, in the county of Weld, on the third Tuesday of December next.
The time fixed by law for holding the district court in Weld county was the second Tuesday in December.
Counsel for defendants entered a special appearance, and moved to quash the supposed writ of attachment. Counsel for plaintiffs made a cross-motion to amend the writ.
The motion to quash was overruled, and the motion to amend was allowed; and the writ was amended by striking out the words 'third Tuesday,' and inserting 'second Tuesday.'
The right to make this amendment was fully considered and decided by this court in the case of Archibald v. Thompson, 2 Col., and we think the decision in that case correct. It is supported by a large number of respectable authorities, and is not in conflict with any decisions of the supreme court of the United States. The substantial rights of parties litigant are not thereby affected, and its allowance best tends to the furtherance of justice.
On the 17th day of December a stipulation was entered into between counsel for plaintiffs and counsel for Lockhart T. Glenn and George O. Talpey which was entered of record. The stipulation is in the following words:
'In the matter of the interplea filed by Lockhart T. Glenn and George O. Talpey in the attachment cause now pending in said court, wherein John W. Doane and others are plaintiffs, and Oliver S. Glenn and Rufus E. Talpey are defendants, it is hereby stipulated by the attorneys for J. W. Doane & Co., and by France and Rogers, the attorneys for Lockhart T. Glenn and George O. Talpey, that the interplea, and the issues joined therein, may be tried at the January term, A. D. 1871, of the Arapahoe county district court; this stipulation to affect the interplea only, and to be in nowise considered as affecting the defendants in the attachment.
'CHARLES & ELBERT, for J. W. Doane et al.
'FRANCE & ROGERS, for Lockhart T. Glenn and George O. Talpey, interpleaders.'
On the same day the court ordered the venue in this cause changed from the district court of Weld...
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