Thompson v. White

• Citation: 25 Colo. 226,54 P. 718
• Parties: THOMPSON v. WHITE.
• Decision Date: 06 June 1898
• Court: Colorado Supreme Court

54 P. 718

25 Colo. 226

THOMPSON v. WHITE.

Supreme Court of Colorado

June 6, 1898

Error to district court, San Juan county.

Action by W. G. White against L. C. Thompson and another. On suggestion of death of L. C. Thompson, Nannie C. Thompson was made a party as his executrix, and from a judgment in favor of plaintiff she brings error. Reversed.

The original complaint was filed in the district court of San Juan county on August 6, 1890, and contained eleven separate causes of action,--seven upon promissory notes, two on overdue book accounts, and two on time-checks assigned to the plaintiff. To the action L. C. Thompson and F. L. Thompson were made defendants. On the same day a writ of attachment was sued out, and five days thereafter returned into court with the sheriff's indorsement thereon, to the effect that he had taken into his possession certain personal property of the defendants, and attached certain of their real estate, describing it. The cause was continued over the September, 1890, term of the court, and at the following May term the plaintiff suggested the death of L. C. Thompson since the beginning of the action, and the appointment by the county court of Fremont county of Nannie C. Thompson as his executrix, under his last will and testament; and she was thereupon substituted as a defendant in place of her deceased husband. At the September, 1891, term, judgment was rendered against F. L. Thompson, one of the original defendants, and Nannie C. Thompson, as executrix; and at the same term, and within three or four days thereafter, F. L. Thompson entered a special appearance, and moved the court to set aside the judgment as to him, on the ground that it was improvidently entered, and the court set aside the judgment as to both defendants; whereupon the plaintiff dismissed the action as to F. L. Thompson, and moved for judgment against the executrix upon the findings of fact theretofore made, which was granted. At the September, 1892, term, defendant moved to set aside this judgment against the executrix, as having been improvidently entered, there having been no service of process upon her, and the court made the order accordingly. The plaintiff then obtained a certified copy of the order substituting Nannie C. Thompson as executrix in the place of her deceased husband, and had the same served upon her April 13, 1893, which was her first notice of the pendency of the action. Upon leave of court, the plaintiff, at the September 1893, term of the court, filed an amended complaint differing from the original complaint only in that there were in the amended pleading allegations of the death of L. C Thompson, and the appointment of his widow as executrix, and her entrance upon the duties of administration. Shortly after being made a party, the executrix moved to dissolve the attachment upon various grounds, and filed to the amended complaint her amended answer, containing a number of defenses. To the amended answer the plaintiff filed a motion to strike certain portions, and a replication to the balance and to this replication the defendant filed a motion to strike. The various grounds of these different motions, and the several defenses interposed in the amended answer, and the matter set forth in the replication, are too voluminous for specification here. Besides, in the view taken by the court of the case, it becomes necessary to consider only two of the errors assigned, and they are sufficiently stated in the opinion. After the record was removed into this court, the defendant in error asked for, and obtained, an order permitting him to make an application in the district court to have the return of the sheriff to the writ of attachment amended, and upon its presentation to the lower court the sheriff was allowed to, and did, amend his return; so that now it is to the effect that he took into his possession certain personal property of the defendants, and attached the real estate described in the return by filing with the county clerk and recorder a copy of the writ of attachment, with a description of the real property attached. It nowhere appears in the record that a copy of the writ of attachment was ever served upon any of the defendants in this action, but, on the contrary, it appears that it was not so served. There was a trial to the court without a jury; findings of fact were made in favor of the plaintiff; and judgment was rendered against the defendant, as executrix, to be satisfied, however, only out of the property seized and held under the writ of attachment; and special execution was ordered for the sale of the attached property. To reverse this judgment is the object of this writ of error by the defendant.

Barnes & Barnes, for plaintiff in error.

Charles E. Gast and Buchanan & Searcy, amici curiae.

Adair Wilson, Riddell & Starkweather, and Reese & McCloskey, for defendant in error.

CAMPBELL C.J. (after stating the facts).

Twenty-six errors are assigned by plaintiff in error, and all of them are argued by counsel on both sides with thoroughness and marked ability. Many of the questions discussed are important, and, if necessary to pass upon all of them, our task would be difficult. The defendant in error himself admits, in argument, that the judgment upon several of the causes of action was improper, and that errors in the computation of interest were made. Two of the questions presented go to the very heart of the controversy, and the resolution of one of them against defendant in error, destroying the lien of his attachment, and of the other requiring a reversal of the judgment and a dismissal of the action, renders unnecessary a determination of the other interesting legal propositions so ably presented. Aside from the effect of admitted errors, our conclusion upon these two effectually disposes of the entire action.

Among the points raised, but not determined, are that the death of the defendant in an attachment suit before final judgment dissolves the attachment; that the pendency of this action at decedent's death is not equivalent to exhibiting the claim; that the claim sued upon is barred by the statute of nonclaims found in the probate law; that the alleged lien of the attachment fell with the repeal of the ground of attachment upon which the present writ was based. Expressly disclaiming any expression of opinion upon these and other errors assigned, but not discussed, but for the purposes of the opinion only assuming, with defendant in error, that his position with reference to them is correct, we proceed to a consideration of the two propositions that are fatal to a recovery in this action: First. The failure to deliver a copy of the attachment writ to the defendant L. C. Thompson left the district court without jurisdiction to render a judgment for the sale of the attached property. Second. A large part of the indebtedness sued for was contracted by L. C. Thompson and F. L. Thompson as co-partners, and as to such indebtedness the judgment could not go against the estate of L. C. Thompson without certain proofs wholly lacking in the record.

The decisions are in conflict as to the effect upon an attachment lien of the death of the defendant before judgment. Waitt v Thompson, 43 N.H. 161, 80 Am.Dec. 136, where the authorities are collated. As to this branch of the case, we might concede that, if a valid lien existed during the lifetime of L. C. Thompson, it might be enforced, under our practice, by the substitution of his executrix as a party defendant, and the subsequent rendition of a judgment against her in her representative capacity in favor of the plaintiff. Civ. Code, § 15. The inquiry then is, how, under our statutes, when the defendant has not entered a general appearance, can a valid and effective lien by attachment be acquired? Real property standing upon the records of the county in the name of the defendant is attached by filing with the recorder of the county a copy of the writ, together with a description of the property attached, and by serving a copy of the writ upon the defendant in person. Civ. Code, §§ 97, 104. These sections have been construed by this court in the case of Great West Min. Co. v. Woodmas of Alston Min. Co., 12 Colo. 46, 20 P. 771, where, among other things, it is said: 'The mere levy of an attachment did not give the court jurisdiction to determine the question of indebtedness, and condemn the attached property to pay the same. * * * Where a defendant resides in this state, and there is no question but that he can be personally served, the service is complete when a copy of the writ is served upon him, and the property levied upon. Then, and not until then, does the court acquire jurisdiction to finally hear and determine the same.' Upon rehearing, Mr. Justice Hayt, speaking for the court, said: 'Whatever rule may obtain in other localities upon the question of acquiring jurisdiction solely by the levy of the writ of attachment, we are of the opinion that, under our statute, there must be further notice and opportunity given for a hearing before condemnation.' At the same term was decided the case of Reynolds v. Ray, 12 Colo. 108, 20 P. 4, where Mr. Justice Elliott, speaking for the court, says: 'We are of opinion that by filing a copy of the writ of attachment, together with a description of the property to be attached, with the recorder of the county, a valid levy was made, and that a valid lien upon the property was thereby created. * * * By the levy under a writ of attachment before the service thereof, the plaintiff acquires a provisional lien upon the property levied on; but, before a valid judgment can be rendered by which the attachment lien is preserved and made effective, there must be proper service of the summons and the writ of...