Woodward v. Ellsworth

• Decision Date: 01 April 1879
• Parties: WOODWARD v. ELLSWORTH.
• Court: Colorado Supreme Court

4 Colo. 580

WOODWARD v. ELLSWORTH.

Supreme Court of Colorado

April, 1879

Appeal from District Court of Clear Creek County.

THIS was an action by Ellsworth, the appellee, as receiver of a national bank, to enjoin Woodward, the treasurer of Clear Creek county, from disposing of or interfering with certain personal property, belonging to the bank as it was alleged to satisfy a tax levied subsequent to the insolvency of the bank. The complaint was demurred to, and the demurrer, as well also a motion to dissolve a temporary injunction theretofore issued, were overruled. The defendant appealed.

Mr. L C. ROCKWELL, and Mr. W. T. HUGHES, for appellant.

Messrs BUTLER, WRIGHT & KING, and Mr. ED. O. WOLCOTT, for appellee.

THATCHER C. J.

It is alleged in the complaint, and admitted by the demurrer that the First National Bank of Georgetown, organized under the act of Congress to provide a national currency, approved June 3, 1864, suspended business July 30th, 1877, then being insolvent; that August 18, 1877, the complaint was appointed by the comptroller of the currency receiver of said First National Bank; that within ten days thereafter he qualified as such receiver; that upon examination of the books and accounts of said bank the receiver found it had been insolvent for more than three years previous to its suspension; that for the year 1877 the bank was assessed for taxation upon 'the sum of $25,000 as the amount of capital used by said bank over the amount invested in United States bonds;' that the sum due for taxes on said amount was the sum of one thousand and fifteen dollars; that at the time of the suspension of the bank, Cushman, who was its president, was possessed of his own right of a cabinet consisting of rare minerals and birds; that the said Cushman sold and assigned the same to the complainant for the benefit of creditors, and that he still has possession of the same, as assets of the bank; that Thomas Woodward, as treasurer of Clear Creek county, was, April 16, 1878, 'about to distrain and levy upon said cabinet and sell the same for the purpose of collecting the said ten hundred and fifteen dollars claimed as taxes aforesaid.' The court issued a temporary injunction restraining the defendant from seizing and selling the cabinet or other personal property then in the hands of the receiver. A motion to dissolve the injunction was made and denied. From the order denying the motion to dissolve, this appeal was taken. Whether the assessment and levy of the tax upon twenty-five thousand dollars of the capital stock of the bank, were legal or illegal upon the facts set out in the complaint, we need not investigate. It is sufficient upon this question to say that even if illegal, that ground alone would not ordinarily warrant the issuance of an injunction to restrain the sale of personal property to satisfy the taxes. The statute furnishes another remedy in such cases which is complete and adequate. Price et al. v. Kramer (ante, p. 546).

But it is upon an entirely different ground chiefly that equitable relief is sought. The circumstances of this case are peculiar. The personal...