Webster v. Gaff
| Citation | 6 Colo. 475 |
| Case Date | April 01, 1883 |
| Court | Supreme Court of Colorado |
6 Colo. 475
WEBSTER, ASSIGNEE,
v.
GAFF ET AL.
Supreme Court of Colorado
April, 1883
Error to District Court of Araphahoe County.
THE case is stated in the opinion.
Messrs. BROWNE and PUTNAM and Mr. CHARLES H. TOLL, for plaintiff in error.
Messrs. CHARLES and DILLON and Mr. L. C. ROCKWELL, for defendant in error. [6 Colo. 476]
PER CURIAM.
This is a motion to dismiss the writ of error on the ground that the writ was not sued out within 'the two years' allowed by the bankrupt law.
On the 27th day of April, A. D. 1876, John Mechling, since deceased, who was then assignee of said bankrupt, filed his bill of complaint in the district court of Arapahoe county, on the chancery side thereof, praying that a certain decree of foreclosure of mortgage and proceedings of sale of mortgaged premises, previously had and entered in said court, wherein the defendants in error, Thomas Gaff and James W. Gaff, were complainants, and the said George W. McClure was respondent, be declared null and void; that the same be set aside, and that the said assignee be restored to the possession of certain real estate mentioned in said proceedings, and for other relief. On the 22d day of May, A. D. 1878, a decree was entered in said cause, dismissing the complainant's bill.
To review this decree, the present writ of error was sued out on the 6th day of March, A. D. 1883. The controversy relates to real estate situated in the city of Denver, formerly owned by said bankrupt. Section 5057 of the Revised Statutes of the United States provides that: 'No suit, either at law or in equity, shall be maintained in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee. And this provision shall not in any case revive a right of action barred at the time an assignee is appointed.'
In behalf of the motion, we have been cited to the case of Robert E. Jenkins, as assignee in bankruptcy of Samuel J. Walker, plaintiff in error, v. The International Bank of Chicago et al., defendants in error, decided by the supreme court of the United States at the October term thereof, A. D. 1882. [6 Colo. 477]
That was a writ of error to the supreme court of the state of Illinois, and presented the same question upon which we are called to pass in this...
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Springfield Fire & Marine Ins. Co. v. Gish, Brook & Co., Case Number: 273
...action, and the formal requisites necessary to the institution of a new suit must be strictly complied with. Webster v. Gaff et al., 6 Colo. 475; Ripley v. Morris, 2 Gilm. (Ill.) 381; Eldridge v. Walker et al., 80 Ill. 270; Allen, Ball & Co. v. Mayor, 9 Ga. 286; Gregg et al. v. Bethea, 6 Po......
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Wingfield v. Neal
...that it is the commencement of a new suit, and not a continuation of the old one; and see Wise v. Brocker, 1 Colo. 550; Webster v. Gaff, 6 Colo. 475. And in Widber v. Superior Court, 94 Cal. 430, 29 Pac. 870, it is held that a writ of error is a new and original suit, in which original proc......
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Bonfils v. Public Utilities Com'n of Colorado, 9204.
...therewith. See Willoughby v. George, 5 Colo. 80, 82; Bond v. Bank, 5 Colo. 83; Hewitt v. Colo. Spgs. Co., 5 Colo. 184; Webster v. Gaff, 6 Colo. 475, 478; Mass., etc., Co. v. Col. Loan & Trust Co., 20 Colo. 1, 36 P. 793. But in Fisher v. Hervey, 6 Colo. 16, it is distinctly held that the rem......
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Ohio-Colorado Min. & Mill. Co. v. Elder
...out of a writ of error is a new suit (Connor v. Estate of James Connor, 4 Colo. 74; Willoughby v. George, 5 Colo. 80; Webster v. Gaff, 6 Colo. 475), and the cause of action of such new suit is to annul and set aside the judgment of the trial court (2 Cyc. 510; Allen, Ball & Co. v. Mayor of ......
-
Springfield Fire & Marine Ins. Co. v. Gish, Brook & Co., Case Number: 273
...action, and the formal requisites necessary to the institution of a new suit must be strictly complied with. Webster v. Gaff et al., 6 Colo. 475; Ripley v. Morris, 2 Gilm. (Ill.) 381; Eldridge v. Walker et al., 80 Ill. 270; Allen, Ball & Co. v. Mayor, 9 Ga. 286; Gregg et al. v. Bethea, 6 Po......
-
Wingfield v. Neal
...that it is the commencement of a new suit, and not a continuation of the old one; and see Wise v. Brocker, 1 Colo. 550; Webster v. Gaff, 6 Colo. 475. And in Widber v. Superior Court, 94 Cal. 430, 29 Pac. 870, it is held that a writ of error is a new and original suit, in which original proc......
-
Bonfils v. Public Utilities Com'n of Colorado, 9204.
...therewith. See Willoughby v. George, 5 Colo. 80, 82; Bond v. Bank, 5 Colo. 83; Hewitt v. Colo. Spgs. Co., 5 Colo. 184; Webster v. Gaff, 6 Colo. 475, 478; Mass., etc., Co. v. Col. Loan & Trust Co., 20 Colo. 1, 36 P. 793. But in Fisher v. Hervey, 6 Colo. 16, it is distinctly held that the rem......
-
Ohio-Colorado Min. & Mill. Co. v. Elder
...out of a writ of error is a new suit (Connor v. Estate of James Connor, 4 Colo. 74; Willoughby v. George, 5 Colo. 80; Webster v. Gaff, 6 Colo. 475), and the cause of action of such new suit is to annul and set aside the judgment of the trial court (2 Cyc. 510; Allen, Ball & Co. v. Mayor of ......