Wilde v. Rawles

• Decision Date: 24 December 1889
• Citation: 22 P. 897,13 Colo. 583
• Parties: WILDE v. RAWLES.
• Court: Colorado Supreme Court

22 P. 897

13 Colo. 583

WILDE v. RAWLES.

Supreme Court of Colorado

December 24, 1889

Commissioners' decision. Appeal from district court, Ouray county.

Stirman & Carpenter, for appellant.

Benedict & Phelps, for appellee.

RICHMOND C.

This was an action to recover certain goods and chattels which had been levied upon by appellee, sheriff of Ouray county, as the property of one Eva C. Meyer, but which appellant claimed to be the owner of. Among other defenses, defendant claimed that, the property being held by virtue of an attachment writ issued out of the county court of Arapahoe county, the property was in the custody of the law, and therefore the plaintiff could not institute suit in another court of concurrent jurisdiction for the possession of the property. To this defense, known as the 'fourth defense,' plaintiff interposed a demurrer. The demurrer was overruled and plaintiff elected to stand by the demurrer. Thereupon the court proceeded to determine the value of the property, and entered up judgment in favor of defendant for the return of the property. It is conceded by both parties that the only question involved in this appeal is whether plaintiff can maintain this action for claim and delivery against the sheriff. The contention of appellee is that the county court of Arapahoe county is a court of concurrent jurisdiction with the county court of Ouray county, in which this suit was originally commenced, and that the plaintiff should have intervened in the suit out of which the attachment writ was issued. In support of this position he relies upon the case of Parks v. Wilcox, 6 Col. 489. The contention of appellant is that the plaintiff has an undoubted right to this remedy, in any court of competent jurisdiction, against the sheriff, and that the case of Parks v. Wilcox has no application whatsoever to the case at bar. It is true that the opinion of the court in the above case strongly intimates that the doctrine that property attached by the United States marshal, by virtue of attachment writs issued out of the United States court, cannot be interfered with by proceedings in state courts, is applicable to courts of the state. This expression of the court went beyond the question actually before it for its investigation, and cannot, therefore, be considered as conclusive upon the point now under discussion, and it is very evident that this court does not adopt the conclusions of appellee deduced from the language of that opinion. Smith v. Bauer, 9 Colo. 380, 12 P 397, was a case involving precisely the same question, with one exception, as was presented in the case of Parks v Wilcox, and the court in that case took occasion to caution parties referring to that opinion in the following language: 'This opinion, it will be observed, makes no reference to cases of replevin brought by the owner in one state court for property wrongfully taken by the sheriff under writs of attachment or execution from another state court of concurrent jurisdiction.' And the practice of instituting an action of replevin under circumstances similar to those in the case at bar has found sanction in Tucker v. Parks, 7 Colo. 62, 1 P. 427, and Stone v. O'Brien, 7 Colo. 458, 4 P. 792. A thorough investigation of the California authorities satisfactorily establishes the practice in that state to be that, where the sheriff attaches the property of a stranger to the proceedings, an action of claim and delivery will lie in the courts of that state, of competent jurisdiction, for the purpose of determining title to property. Stephens v. Hallstead, 58 Cal. 193; Carroll v. Sprague, 59 Cal. 655; Norcross v. Nunan, 61 Cal. 640. In Smith v. Montgomery, 5 Iowa 370, it was held that 'if the property of A. is taken upon attachment or under execution against the property of B. it is exempt from such seizure, and A. may bring replevin.' In Miller v. Bryan, 3 Iowa 58, the trial court instructed the jury as follows: 'If they find that...