Weiss v. Ahrens

• Decision Date: 14 October 1913
• Citation: 24 Colo.App. 531,135 P. 987
• Parties: WEISS, Sheriff, et al. v. AHRENS.
• Court: Colorado Court of Appeals

135 P. 987

24 Colo.App. 531

WEISS, Sheriff, et al. v. AHRENS.

Court of Appeals of Colorado

October 14, 1913

Appeal from District Court, Rio Grande County; Chas. C. Holbrook Judge.

Suit by Rudolph Ahrens against August J. Weiss, as Sheriff of Rio Grande County, and another. Decree for complainant, and defendants appeal. Affirmed.

Corlett & Corlett, of Monte Vista, for appellants.

Jesse Stephenson, of Monte Vista, for appellee.

BELL J.

Rudolph Ahrens, appellee, filed his complaint in equity in the district court of Rio Grande county against August J. Weiss, as sheriff of said county, and the Farmers' & Merchants' State Bank of Attica, Ind appellants, for the purpose of having canceled and held for naught two so-called certificates of levy filed by said sheriff, under a certain writ of attachment, in the office of the clerk and recorder of said county on the 9th day of February, 1910, against the interests of J.W. Ahrens and C Lewis Ahrens in lots 20, 21, 22, and 23 of block 22 in the West Side addition of the town of Monte Vista, in said county, and likewise to cancel and hold for naught a certificate of purchase of said property bearing date January 21, 1911, issued by said sheriff to the Farmers' & Merchants' State Bank aforesaid for the sum of $606.25, and prayed that all of said instruments be canceled upon the records of said county, and held for naught, and the cloud thereby created upon his title to said property be removed, and that said sheriff be enjoined from making a deed to said property by reason of said certificates or any of them, and the relief as prayed for in said complaint was granted by the court.

On the 9th day of February, 1910, said Farmers' & Merchants' State Bank filed an affidavit of attachment in said court in an action which it had instituted against J.W. Ahrens, W.A. Robb, and C. Lewis Ahrens, and caused a writ of attachment to be issued thereon, directing the sheriff to attach any property belonging to said defendants or any of them so as to secure whatever judgment might be obtained against them, and, in pursuance of said writ, said sheriff, on the same day, filed two certificates of levy upon the property above mentioned in manner and form as provided and usually practiced in levying upon real estate under execution, but wholly neglected to file a copy of the writ of attachment, together with a description of the property attached, with the recorder of said county, except such description as was contained in said certificates of levy. None of the defendants in the attachment suit was served with said writ of attachment, or personally served with the summons, although they appeared to the action, and suffered judgment against them.

On the 10th day of February, 1910, one day after the certificates of levy had been filed, John W. Ahrens, C. Lewis Ahrens and Mayme Ahrens executed and delivered to Rudolph Ahrens, appellee herein, for an expressed consideration of $1,000, a good and sufficient deed for their interests in lots 20 and 21 above mentioned, and on the same day C. Lewis Ahrens and Mayme Ahrens executed and delivered to the same grantee, for an expressed consideration of $400, a good and sufficient deed for their interests in lots 22 and 23 above mentioned, and said deeds were duly filed for record in the office of the clerk and recorder of said county on April 30, and April 10, 1910, respectively.

The sheriff, on the 17th day of March, 1911, something like 11 months after these deeds were filed for record, filed in the office of the clerk and recorder as aforesaid a copy of the writ of attachment, in a seeming endeavor to make his levy comply with the provisions of section 115 of the Civil Code (page 95 of the Revised Statutes of 1908), which reads as follows: "Sec. 19. The sheriff to whom the writ is directed and delivered, shall execute the same without delay, *** as follows: First. Real property standing upon the records of the county in the name of the defendant, shall be attached by filing a copy of the writ, together with a description of the property attached, with the recorder of the county. Second. Real property, or any interest therein belonging to the defendant, and held by any person, or standing upon the records of the county in the name of any other person (but belonging to the defendant), shall be attached by leaving with such person or his agent, a copy of the writ and a notice that such real property (giving a description thereof), and any interest therein belonging to the defendant, are attached pursuant to such writ, and filing a copy of such writ and notice with the recorder of the county."

The sheriff, it will be noticed, entirely ignored that provision of the section of the Code above recited which specifically directs that an attachment shall be levied by filing a copy of the writ, together with a description of the property attached, with the recorder of the county. If this provision is mandatory, then it would seem that the mere filing of a certificate of levy, without a copy of the writ of attachment, is not effective as against a subsequent purchaser.

In Graham v. Reno, 5 Colo.App. 330-334, 38 P. 835, 836, this court, in considering the question of a failure of the sheriff to serve a copy of the writ of attachment and notice on the party in whose name the property stood of record, as required by division second of the section of the Code above recited, said: "It is thus distinctly provided by the act that the sheriff must not only serve the notice and the writ upon the person in whose name the title stands, and file his writ with the clerk and recorder of the county, but he must...