Trustee Co. v. Aetna Cas. & Sur. Co., 17932
| Decision Date | 15 April 1957 |
| Docket Number | No. 17932,17932 |
| Citation | 310 P.2d 727,135 Colo. 236 |
| Parties | TRUSTEE COMPANY, a Colorado corporation, Plaintiff in Error, v. AETNA CASUALTY AND SURETY COMPANY, a Connecticut corporation, Defendant in Error. |
| Court | Colorado Supreme Court |
J. R. Strickland, Frank L. Hays, Denver, for plaintiff in error.
John P. Beck, Denver, for defendant in error.
Plaintiff in error, referred to herein as plaintiff, holds an unsatisfied judgment in the amount of $1500.03 against Ellsworth-Bond & Company, Inc., a Kansas corporation, referred to herein as defendant. In an effort to collect its judgment, plaintiff caused a garnishee summons to be served on the defendant in error to whom we will refer as garnishee.
To the interrogatories attached to the summons garnishee answered as follows: (1) Garnishee is not indebted to defendant. (2) Garnishee does not have in its possession or control any property in which the defendant has an interest. (3) Garnishee does not know of any property belonging to the defendant. To these answers of the garnishee plaintiff filed its 'Traverse of Answer of Garnishee', the material allegations of such traverse being as follows:
The garnishee had issued to defendant its 'blanket position bond' whereby garnishee had agreed to indemnify defendant against any loss of money or property which defendant shall sustain through any fraudulent or dishonest acts of any of its employees; that during the time said bond was in effect G. E. Pinson, president, director and employee of defendant, 'unlawfully and without knowledge or consent of said defendant corporation, appropriated unto himself and stole away from defendant corporation its property consisting of one 1954 Lincoln sedan of the reasonable value at the time of said removal of the sum of $2,500.' That the garnishee is indebted to defendant under said bond in the amount of $2,000.
Trial was to the court on the issues as made by the garnishee's answer and the traverse thereto. The trial court made no specific findings of fact, but did enter a final judgment as follows:
'* * * doth find the issues in favor of garnishee, Aetna Casualty & Surety Company.
'It is ordered, adjudged and decreed by the Court that said traverse of answer of garnishee * * * be, and hereby is, dismissed.'
To review this judgment of dismissal plaintiff is here on writ of error.
Plaintiff's counsel state that the evidence is not in conflict and for the most part this is true. We find, however, that the evidence is in hopeless conflict on a most vital point--the question of the ownership of the Lincoln car.
Plaintiff's witness, Roberts, former bookkeeper and director of defendant, Ellsworth-Bond & Company, Inc., of 5019 East Colfax, Denver, Colorado, testified that the Lincoln was purchased by defendant, paid for by defendant, and certificate of title issued to defendant whereas garnishee's Exhibit 1, being a photostat copy of the original certificate of title, admitted in evidence without objection, shows that the Lincoln was purchased by Bond & Company and the original certificate of title issued to Bond & Company of 10525 Montview Blvd., Denver, Colorado. The reverse of this exhibit shows that on June 25, 1954 Bond & Co. by G. E. Pinson assigned the title to this Lincoln to Garford E. Pinson. This certificate of title issued by the State of Colorado (Garnishee's Exhibit 1) is in direct conflict with Roberts' testimony that the title was issued to Ellsworth- Bond & Company, Inc. We conclude that the record fails to show that title to the Lincoln ever stood in the name of Ellsworth-Bond & Company, Inc.
It may be that Ellsworth-Bond & Company, Inc. is the same legal entity as Bond & Company. If so there is nothing in the record to so indicate and much to indicate the contrary. All of plaintiff's testimony and exhibits, including the bond on which plaintiff bases its claim, show the address of Ellsworth-Bond &...
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