Wellington v. Terry

• Citation: 88 P. 467,38 Colo. 285
• Parties: WELLINGTON, Constable, v. TERRY et al.
• Decision Date: 07 January 1907
• Court: Supreme Court of Colorado

88 P. 467

38 Colo. 285

WELLINGTON, Constable, v. TERRY et al.

Supreme Court of Colorado

January 7, 1907

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

Action by W. H. Terry and another against William T. Wellington constable. From a judgment for plaintiffs, defendant appeals. Affirmed.

James W. Shields, for appellant.

Geo T Sumner, for appellees.

STEELE J.

Terry and Rilling brought suit in replevin against Wellington, as constable, to recover the possession of certain live stock. A justice of the peace rendered judgment in favor of the defendant, and the plaintiffs appealed to the county court. By stipulation, the cause was transferred to the district court of Costilla county. That court found that the defendant wrongfully detained the property in question, found the value thereof to be the sum of $150, and the damages for the detention thereof the sum of 6 cents. The judgment ordered the return of the property or its value, and awarded damages in the sum of 6 cents. From this judgment, an appeal was taken to the court of appeals.

The appellant says that the judgment should be reversed because it is not sustained by the evidence, and because, according to the law and the evidence, the judgment should have gone in favor of the defendant. It seems that some time prior to the seizing of the property by the constable the property had been taken possession of by the plaintiffs and was held by them as mortgagees at the time it was seized by the constable. The parties directing the seizure by the constable claim that the mortgage was void because the mortgagee had permitted the mortgagor to sell a portion of the property and apply the proceeds thereof to his own use and because the mortgage was given to secure a debt other than the debt of the mortgagors. The mortgage in question was given by Mary A. Rhodes and Louis A. Rhodes to secure the payment of certain notes signed by the mortgagors, aggregating the sum of about $500. Although the notes were signed by Mary A. Rhodes and Louis A. Rhodes, the testimony discloses that S. L. Rhodes, the husband of Mary and the father of Louis, was indebted to Terry, and the notes and mortgage were given to secure this debt. Counsel, in his brief, says: 'It is fully shown by the evidence of S. L. Rhodes, * * * and not denied by Terry, that, at the time of the taking of said mortgage, Terry knew that the property mortgaged was not the property of Louis or Bert Rhodes, and that he also knew that the debt to be secured was the debt of S. L. Rhodes which fact renders mortgage void as to creditors.' Rhodes testified that...