Vote v. Karrick

• Decision Date: 11 September 1899
• Citation: 13 Colo.App. 388,58 P. 333
• Parties: VOTE v. KARRICK.
• Court: Colorado Court of Appeals

58 P. 333

13 Colo.App. 388

VOTE v. KARRICK.

Court of Appeals of Colorado

September 11, 1899

Appeal from district court, Arapahoe county.

Action by G.E. Vote against James L. Karrick, in which an attachment was levied on property of defendant, and Henrietta B. Karrick intervened. From a judgment for intervener, plaintiff appeals. Affirmed.

Thomas B. Stuart and Charles A. Murray, for appellant.

Westbrook S. Decker, for appellee.

WILSON J.

This is an appeal from a judgment in favor of an intervener in an attachment proceeding. The appellant commenced suit against James L. Karrick on four promissory notes, aggregating in amount about $750. The attachment writ was levied upon an improved farm of 160 acres, and certain cattle and horses situate upon the farm. There is some dispute as to whether or not a proper levy was made, but, in the view which we take of the case, it will be seen that this is not material nor necessary to be discussed. Soon after the levy or attempted levy, Mrs. Karrick, the appellee, and the wife of the defendant in the suit, filed her petition in intervention, claiming to be the owner of all of the property attached. The answer of plaintiff to this petition denied that the petitioner had any interest in the property, and alleged that her claim thereto was without consideration, and made for the purpose of defrauding the creditors of the defendant, and especially the plaintiff, and that she knew the defendant was attempting to transfer it to her for that purpose. It further alleged that, with reference to the personal property, there had been no change of possession of the property from the defendant to the intervener, and that hence the attempted transfer was void, under the statute of frauds. Upon the trial, at the conclusion of the introduction of evidence by both parties, counsel for intervener move the court to take the case away from the jury, and for judgment in favor of the intervener upon the pleadings and evidence introduced. The motion was sustained and judgment rendered accordingly. The plaintiff claims that this was reversible error, because there were matters of fact in evidence which should have been submitted to the jury for its determination.

The proceeding in this respect was somewhat unusual, the ordinary mode of procedure being a motion that the court instruct the jury to render a verdict in favor of the intervener. The effect of the motion, however, was the same. It accomplished the same purpose, and we shall consider it on this basis. In Murphy v. Cobb, 5 Colo. 281, the rule was announced that where plaintiff shows upon trial no cause of action, or makes out no case whatever, and no motion for a nonsuit is interposed, it is not only the right, but it may be the duty of the court to direct a verdict for defendant. The doctrine there announced has been repeatedly affirmed in subsequent decisions, both of the supreme and of this court. It is true that an intervention proceeding has been declared to be in the nature of an independent suit, in which the intervener may be considered as the plaintiff, and the plaintiff in the attachment suit as the defendant. It has been determined, however, that where the defenses are affirmative, and upon trial are unsupported by evidence, a verdict should be directed for the plaintiff. Campbell v Clay, 4 Colo.App. 551, 36 P....