« ΠροηγούμενηΣυνέχεια »
ment of liberal exemption laws, and as the it is held that the claimant must prove, aut courts, when those laws are passed, construe only that he is the head of a family, but them liberally in favor of persons claiming that he resides with the same, showing that rights thereunder, and in order to effectuate these words impose a condition other than their beneficent design, that the defendant that one must be the head of a family. Mcwas residing with his family in Colorado, Masters v. Alsop, 85 III. 157; Barnes v. Rog. within the meaning and intent of the statute. ers, 23 Ill. 350. The claimant must reside with It is true that the courts, in the construction his family either in this state or in the state of statutes, will endeavor to arrive at the true of Pennsylvania. He is here; his family is meaning of the legislature, even though the there. He does not claim his residence in meaning so ascertained will depart from the Pennsylvania, but bases his claim to this exliteral sense of the words. It is also true emption solely upon the fact that he is a resithat courts will endeavor to give to all the dent of this state; hence he does not reside words found in a statute their proper and with his family in Pennsylvania. In no sense legitimate meaning, and will presume that of the term can it be held that he is “residing" tue legislature meant something when it em- with his family in this state. He could not ployed those words. The principal object of very well reside with them unless they reside all exemption laws, it has been said, is for with him, and they reside Philadelphia. the benefit of the family, and, under our law, They never have been here, but during his this benefit is to be enjoyed by the head of entire residence in Denver they actually were a family and for their use only while he re- in the state of Pennsylvania. Hence defendsides with the same. As has been said, the ant does not reside in Colorado with his famevidence here shows that the defendant is ily, even if both defendant and his family inthe head of a family; that he came from the tended that they should reside here. To prostate of New York to Colorado to make this bis duce such a result, the intention and act permanent home, and to remove his family must unite. If plaintiff's family had once rehere as soon as he was able to accomplish it. sided with him in Colorado, and bad thereWhen he left New York, his family went to after gone to Pennsylvania for a temporary the state of Pennsylvania. They have never residence, the case would be quite different, been in the state of Colorado. Appellee con- and the pertinency and force of appellee's tends that, inasmuch as the domicile of the argument would be recognized. husband is the domicile of the wife, there- As the plaintiff does not come within the fore the residence of the husband must be class of persons named in this statute as enthe residence of the wife and family. This is titled to the benefit of exemption, strictly it not universally true as a matter of fact, may not be necessary to determine whether or neither do we think it follows as a matter not be properly made his selection of exempt of law. If this contention were correct as a property. But' po selection was ever made legal proposition, the legislature evidently by defendant. Property other than that claim. misinterpreted the then existing law. The ed to be exempt was levied upon. The mere legislature evidently construed the law to be demand by defendant of his right to select that the head of a family might have a resi- was not equivalent to making the selection. dence in one place, and his family a residence It was not the duty of the constable to set in another place, and that the head of a fam- apart the exempt property, unless the claimily might have his residence, and still not ant pointed out such property, when the sei. reside with his family; so it imposed as a zure embraced other property rightfully takcondition to the right of exemption that the en, and the exempt property was not specifichead of a family should enjoy it only while ally exempt by the statute, but merely comhe is residing with the same. The converse prised a portion of stock in trade, even of the proposition must necessarily be true, though it be less than $200 in value. that, when he is not residing with his family, There is another reason why the judgment he cannot claim the right of exemption. If should be reversed. The constable, under the residence of the head of a family fixes the the writ of attachment, seized not only this residence of his family, and if the law estab- property which is claimed to be exempt, but lishes the residence of the family wherever | also other property purchased by the defendthe head is residing, then the head of the ant from the plaintiff, for the purchase price family resides with the same, even though the of which this action was brought. The nafamily be residing in one state, and the head ture of the claim sued upon does not expressly in another state. If such be the law, then appear from the evidence, but the appellee in the use of the language, "and residing with his brief virtually concedes that the action the same," is entirely superfluous; but we was for the purchase price of goods sold to cannot presume that the legislature used these him by the plaintiff, and in his affidavit claimwords without intending to convey some ing exemption he expressly excepts therefrom meaning.
such goods as were purchased by him from the In Illinois, where the statute is like ours, plaintiff. The evidence does not disclose spe in that it requires that a claimant must be cifically what goods are claimed as exempt, the head of a family, and residing with the or what was confessedly subject to the at. same, to entitle him to maintain his claim tachment. The county court, however. orderthat such property is exempt from seizure, ed a release of all the property attached, both that which was declared not subject to at- Fleming, are held and firmly bound unto the tachment and that conceded to be liable there- Norwich Union Fire Insurance Society, of to, and ordered a return of all the property Norwich, England, its successors and assigns, to the defendant. This was error. If the de- in the sum of one thousand dollars, lawful fendant was a person entitled to the exemp- money of the United States of America, to be tion, and if there was evidence in the record paid to the said the Norwich Union Fire Into inform us what specific property was sub- surance Society, for which payment, well and ject to attachment and what was not, we truly to be made, we bind ourselves, our might modify the judgment of the court be- heirs, executors, and administrators, firmly low, and order a redelivery to the plaintiff of by these presents, sealed with our seals, datthat portion of the property so seized under ed at Aspen, Colo., the 20th day of January, the writ of attachment, which the plaintiff one thousand eight hundred and eighty-sevsold to the defendant, and affirm so much of
en. The condition of this obligation is such the judgment as awarded a delivery to the that if the above-bounden John D. Bransford defendant of the exempt property. There is shall faithfully perform his duties as agent of no evidence, however, which would enable us the said the Norwich Union Fire Insurance so to do. For the reasons given in this opin- Society for Aspen, Colorado, and vicinity, and ion the judgment must be reversed, with in- shall duly and punctually account for and structions to the court below to proceed in pay over to the said the Norwich Union Fire accordance with the views herein expressed. Insurance Society, at its agency in the city of Reversed.
New York, the premiums and moneys collected by him for insurance of risks taken by
the said the Norwich Union Fire Insurance (21 Colo. 34)
Society, then the above obligation to be void; BRANSFORD et al. v. NORWICH UNION
otherwise to remain in full force and virtue; FIRE INS. SOC.
it being understood, and this obligation is re(Supreme Court of Colorado. Feb. 18, 1895.) ceived by the said society upon the express AVESDMENT OF ANSWER LACIIES ACTiOx ox
condition, that any leniency shown by the Boxd--DEFESSES.
society to said agent shall not relieve the 1. A refusal to allow defendant to file an sureties from their obligation, and that it is amended answer will not be disturbed where
to be construed, as to the liabilities of the the defense proposed was known to defendant , when he filed his original answer, and no valid
obligors thereunder, in the same manner, to excuse is given for not including it therein. all intents and purposes, as if it had been
2. An insurance agent, who gave a bond made in the state of New York. John D. conditioned to account for all premiums collected, cannot, in defense to an action on the
Bransford. [Seal.) R. C. Wilson. (Seal.) bond, set up that he assigned his insurance busi
E. W. Fleming. [Seal.] ness to several insurance companies, including It is alleged in the complaint, and shown plaintiff, to whom he was indebted, to sell to the by undisputed testimony at the trial, that the best advantage, and apply the proceeds pro rata to the payment of his indebtedness to each,
defendant Bransford, while such agent, coland that the business was worth enough to pay lected for his principals the sum of $129.95 all such indebtedness, but that the companies as premiums, which he failed to pay over, sold it for less than the best price that could have been obtained therefor, there being no al
but wrongfully converted and appropriated legation as to what sum might have been real
to his own use. Plaintiff demands judgment ized.
for this amount against Bransford and his Appeal from Pitkin county court.
sureties upon the foregoing bond. On the Action by the Norwich Union Fire Insur
27th day of August, 1890, the defendants ance Society against John D. Bransford and
Wilson and Fleming appeared and filed a others to recover moneys in the hands of de
general denial. On the 12th day of Novemfendant as agent of plaintiff, and which de
ber following Bransford appeared and anfendant converted to his own use. From a
swered. By this answer he admits the allejudgment for plaintiff, defendants appeal.
gation of the complaint with reference to the
amount involved in the action, the organizaAffirmed.
tion of the plaintiff company, and his emW. W. Cooley and H. W. Clark, for appel- ployment as its agent. He further admits lants. Edward C. Stinson, for appellee. the making and delivery of the bond set out.
All other allegations of the complaint are deHAYT, C. J. The Norwich Union Fire In- nied. Thereafter the defendant Bransford surance Society, a corporation engaged in moved the court for permission to file what conducting a general fire insurance business he terms a "supplemental answer," but which within the state of Colorado and elsewhere, is, more properly speaking, an "amended appointed one John D. Bransford as its agent answer,” and in support of such motion be at Aspen. Bransford was authorized to so- presented his affidavit. It appears from the licit and place insurance and receive premi- record that this answer and affidavit were ums therefor. At the time he was appointed prepared on the 14th day of February, 1891, he executed a bond for the faithful discharge In does not definitely appear at what time of his duties, which bond is as follows: application was made to the court for leave “Know all men by these presents, that we, to file this pleading, but presumably at its John D. Bransford, R. C. Wilson, and E. W. next sitting, in the month of March, shortly before the case was reached for trial. The apparent from the nature of the business, court refused to allow the amended answer and from the terms of the agreement, that to be filed, and the case was tried to the court the insurance companies were not bound to without the intervention of a jury, upon the sell the agency for the highest price that original pleadings. This trial resulted in a could be realized for the same, without refjudgment for plaintiff for the amount claimed. erence to the character of the purchaser. It
The errors assigned may properly be con- was to be sold to the best advantage of all sidered upon the ruling of the court denying concerned, and in the selection of a purchaser permission to file the amended answer ten- the companies had a right to take into considdered. It is apparent from the record that eration the character of such purchaser, and the facts alleged in this pleading were as well whether or not he was qualified, by experiknown to the plaintiff and its attorney atence, ability, and fidelity, to properly reprethe time of filing the original answer, on the sent the companies in the important business 12th day of November, 1890, as they were at of taking risks for and on their behalf in the the time at which the amended answer was town of Aspen aforesaid. For these reasons prepared and tendered. No valid excuse be- the application to file the pleading denomiing given for not presenting this defense at nated a "supplemental answer" was properly the time of filing the original answer, the refused. There being no dispute as to the court might properly, in its discretion, have amount, the judgment will be affirmed. Afrefused permission to file the same for this firmed. reason. But, aside from this, the answer tendered constituted no defense to the claim
(21 Colo. 9) of plaintiff. By this answer it appears that the defendant Bransford was the agent at As
FISCHER et al. v. HANNA. pen of a large number of insurance compa- (Supreme Court of Colorado. Feb. 18, 1895.) nies, and it is alleged that, after his failure WHO MAY APPEAL-PERSONS NOT PARTIES-FOREto pay over the premiums due to the plaintiff
CLOSURE SUIT--DECREE AS TO INTERVENER'S and other companies, he give a bill of sale
CLAIM- APPEAL TO SUPREME COURT. of his insurance agency at Aspen, conveying
1. Under Code 1887, § 388, authorizing ap
peals to the supreme court, provided “the party' and assigning to them all of his insurance praying the appeal give bond, only a party to the business, the consideration recited in this bill record in the trial court can appeal. of sale being that the purchasers should take
2. In a foreclosure suit a defendant cannot
appeal to the supreme court from a decree overcharge of the agency, and sell the same to the
ruling a demurrer by him to a petition of interbest advantage of all parties, the proceeds to vention by another lien claimant, and also de be applied to the payment of the indebted- creeing intervener's claim prior to his. ness of the defendant Bransford to the com- Appeal from district court, Arapahoe coun. panies, pro rata. The defendant further el. ty. leges that the value of the insurance busi- Action by the Colorado Savings Bank ness so turned over under the bill of sale was against William Lockhart Smith, Ferdinand greater than all his indebtedness then owing C. Fischer, and others. John B. Hanna into the companies represented in the agree- tervened. There was a judgment declaring ment, the same being of the value of $6,000. the lien of the intervener superior to that The answer also contains an agreement of of other parties to the action. The Chicago some 24 insurance companies among them- Lumber Company bought up the claims of selves. Neither of the appellants was a par- the plaintiff and defendant Fischer, and from ty to this latter agreement. The defendant an order denying its application to be subfurther alleges that, after the transfer of his stituted as plaintiff in lieu of the Colorado business to the companies as aforesaid, they Savings Bank the Chicago Lumber Company sold the same for the sum of $2,503.17. It appeals, and from an order denying his apis not claimed that this money was not ap- plication to set aside the hearing and to be plied in strict accordance with the terms of further heard upon the questions involved in the contract between the defendant and the the action, defendant Fischer appeals. Apcompanies, as evidenced by the bill of sale, peals dismissed. but it is alleged that the companies did not An action was instituted in the district sell the business for the best price that could court of Arapahoe county by the Colorado be obtained therefor. This answer is defect- Savings Bank against William Lockhart ive in the following, among other particulars: Smith, Ferdinand C. Fischer, and others, to It does not seek to make all the parties to foreclose a deed of trust upon lots 17, 18, 19, the bill of sale parties to this action; it does and 20 in block 231 in Denver, Arapahoe not allege what sum might have been real- county, Colo., together with the leasehold ized from the sale of the business, the allega- interest in said property, and fixtures and tion in this behalf being that the sum ob- furniture in the theater building situate tained, viz. $2,503.17, was not the best price thereon. Ferdinand C. Fischer was the trusthat could be obtained therefor. This is not tee in a certain other deed of trust subject inconsistent with the idea that the difference to that of plaintiff. In this action E. R. between the price realized and the price that | Cooper was appointed receiver, who, by concould be obtained was merely nominal, and sent of the parties, sold the property, and not worthy of consideration. Moreover, it is realized therefrom about $36,000. During the pendency of the action the Chicago Lum- cute an appeal or writ of error he must be a ber Company purchased the claim of plain- | party to the record in the trial court. Ex tiff and the claims represented by Fischer, parte Cutting, 94 U. S. 14; Ex parte Cockand by consent of the receiver the funds in croft, 104 U. S. 578; Guion v. Insurance Co. his hands were turned over to this company 109 U. S. 173, 3 Sup. Ct. 108; Reid v. Quigupon its executing a bond to pay and satisfy ley, 16 Ohio, 445; Bayard v. Lombard, 9 certain contested claims in case they should How. 530; Payne v. Niles, 20 How. 219; be adjudged to be due, and save the receiver People' v. Lynch, 54 N. Y. 681; Davis Co. v. harmless from all costs, damages, etc. Horn, 4 G. Greene, 94; Fleming v. Mershon, Among the claims so provided for was that 36 Iowa, 413; Pow. App. Proc. p. 374. In of John B. Hanna, who had by petition in- the cases cited by counsel for appellants antervened in the action. To this petition the nouncing a different rule the courts had unplaintiff and Fischer filed separate demur- der consideration statutes that expressly rers, which were overruled, and afterwards, gave to “any party aggrieved by the judg. upon the trial of the petition in intervention, ment" the right to appeal. Our statute conthe court found, inter alia, that the defend- tains no such provision, but enacts as folAnt Fischer and the other defendants had lows: “Appeals to the supreme court from no interest in the suit, and no right to con- the district
courts shall be allowed test the intervener's petition, and “ordered, in all cases where the judgment or decree adjudged, and decreed that the said John B. appealed from be final, and shall amount exHanna do have and recover of and from the clusive of costs, to the sum of one hundred said William Lockhart Smith the sum of dollars. (Since establishing the court of ap$5,713 66, and that the right of the said John peals the amount must exceed the sum of B. Hanna to a -lien upon the building and $2,500.) * • Provided, the party praying leasehold interest described in his petition for such appeal shall by himself, or agent. is declared and established in the amount or attorney, give bond," etc. Code 1887, aforesaid; that out of the fund arising from 388. In the case of Reid v. Quigley, supra the sale of the building aforesaid the inter- the court, construing a like statute, uses the vener is entitled to satisfaction of the fore following language: “This is the only law going judgment; and the receiver is hereby which gives an appeal in any case, and this ordered to pay forthwith to the said John B. only enables the party to appeal from a judg Hanna the sum of $5,713.66; * and it ment of an inferior court to the supreme is now adjudged that, inasmuch as the inter
court. This authority is given to the part, vener commenced work long prior to the to the judgment, and to no one else. Third date of all other claims heretofore reduced
persons are not authorized to act by the law. to a decree herein, the judgment of the in- nor would good policy allow them to inter tervener herein is adjudged prior to all fere and remove causes by appeal. It is claims heretofore adjudicated herein, and is manifest that such a practice could not be entitled to satisfaction out of the $30,000 tolerated, as it would produce many evils. fund before any other claimant thereto; and be subversive of private rights." What.
that the intervener recover his ever may be the right of the Chicago Lumcosts," etc. The Chicago Lumber Company | ber Company to have this judgment remade application to be substituted as plain- viewed in the name of the Colorado Say. tiff in lieu of the Colorado Savings Bank, ings Bank, its assignor, in the court of apwhich application was denied. Fischer peals, it clearly has no right, of its own made application to set aside the hearing, motion, to make itself a party to the proceed. aud for further right to be heard upon the ing and prosecute an appeal in its own same. questions involved in the action, which ap- But it is insisted by counsel for appellants plication was also denied; whereupon the that the foregoing objections do not apply Chicago Lumber Company and Ferdinand C. to Ferdinand C. Fischer, since he was Fischer brought the case to this court upon party to the record as defendant.
If it may appeal.
be held that Fischer still has an appealable
interest in the judgment complained of, notBenedict & Phelps and Horace Phelps, for
withstanding the claims represented by him, appellants. Clay B. Whitford, H. A. Linds
as trustee, have been assigned to the Chiley, and C. M. Bice, for appellee.
cago Lumber Company, and it, the bene
ficiary of such trust, has received the proGODDARD, J. (after stating the facts). ceeds realized from a sale of the trust prop-. The right of appellants to maintain this ap- erty, still the decree against him is not of peal is attacked upon several grounds. the character requisite to sustain an appeal First, because the Chicago Lumber Company to this court. It appears from the record was not a party to the record in the court that he and the Colorado Savings Bank debelow, and because the judgment appealed murred to intervener's petition, which de from is a personal judgment against William murrers were overruled, and they appear to Lockhart Smith, and not against the appel- have elected to stand by their demurrers, lants, or either of them. We think that up- since they filed no further pleading in the on both grounds the objection is well taken.
The right to review the judgment of It is well settled that to enable one to prose- the court below overruling those demurrers
is clearly not in this court, and the decree ulent. The suit was originally brought on in itself is not, in factor form, a decree | the 21st day of June, 1880, against the Comet against him for a money judgment, but is Consolidated Mining Company, the Upper to the effect that he had no interest to con- Platte Mining & Smelting Company, Henry test intervener's claim, and that the lien rep- C. Frost, J. Granville Sharp, Hugh Butler, resented by him was subsequent and subor- and Edwin Pike, sheriff of Park county, dinate to that of intervener. This in no Colo.; and on the 17th day of January, 18:40, sense constitutes a decree that he may ap- plaintiff filed an amended and supplemental peal to this court, whatever may be his right complaint, making the other defendants in to obtain a review of the same in the court error parties. The facts upon which the right of appeals. That the judgment appealed to this relief is predicated are substantially from must be against the party appealing is as follows: The Upper Platte Mining & settled by former decisions of this court. Smelting Company was in 1882 the owner of Hall v. Mining Co., 6 Colo. 81; Todd v. De certain mining claims, a tramway, and certain La Mott, 9 Colo. 222, 11 Pac. 90. The parties, mill sites and other property. On December therefore, to this record, entitled to an ap- 23, 1882, the company became indebted to appeal to this court, are William Lockhart pellant, James C. Hale, H. C. Frost, and Smith, against whom a personal judgment Richard Le Bert in the sum of $14,000, and, for a sufficient amount to give this court ju- as evidence of such indebtedness, executed to risdiction was rendered, and perhaps the re- these parties its promissory notes for the proceiver, since the decree compels him to pay portion of such indebtedness due each of the judgment out of funds in his hands. them respectively,-to appellant, two notes Hinckley v. Railroad Co., 94 U. S. 467. Coun- for $1,250 each, due in 9 and 15 months, and sel for appellants recognized that a money one for $1,000, due in 12 months after date; judgment against the party appealing was and like notes to James C. Hale, who afteressential, since, by the recitals in the condi- wards assigned the same to appellant. On tion of the appeal bond it is made to appear, June 8, 18-1, the company executed a power contrary to the decree, that the intervener of attorney to Hugh Butler and J. Granville obtained judgment against the appellants for Sharp, conferring upon them the full managethe sum of $5,713.66, and in terms obligates ment of its property, and empowering them them and their sureties to pay such judg. to sell, lease, or otherwise dispose of the ment in case of affirmance. That this statu- same, and to execute and deliver deeds, retory condition cannot be enforced against ceive and receipt for purchase money, etc them is clear, since it “can only apply where On March 22, 1883, the company, by Butler the party against whom the judgment is ren- & Sharp, attorneys in fact, conveyed all its dered is the appellant.” Hall v. Mining Co., property to the Comet Consolidated Mining supra. It is unnecessary to notice the fur- | Company for and in consideration of its enther grounds presented, as the motion to dis- tire capital stock, consisting of 90,000 shares, iniss the appeal must be sustained for the of the par value of $10 each. The Comet foregoing reasons. Appeal dismissed.
Consolidated Mining Company was incorporated by James F. Matthews, C. L. Webb,
and Henry C. Frost, for the purpose of tak(21 Colo. 54)
ing title to the property of the Upper Platte VAUGHN v. COMET CONSOL. MIN. CO. Mining & Smelting Company, and to provide, et al.1
by the sale of a portion of its stock, for the (Supreme Court of Colorado. Dec. 5, 1894.) payment of the indebtedness of that comESTOPPEL - ACQUIESCENCE-JUDGMENT-MERGER.
pany, and placed in escrow 36,000 shares for 1. A creditor of a mining company, who
that purpose. At the time of the transfer of makes no objection to a transfer of its proper
title to the Comet Consolidated Mining Comty to another company, and knowingly permits pany, Matthews, Webb, and Dillingham enthe transferee to work the property, and incur debts, for the satisfaction of which the prop
tered into an agreement to purchase this erty is subsequently sold, is estopped to deny
stock, and thereby furnish means for the the validity of the original transfer or of the working of the property and the payment of title acquired at the sale.
these debts. They paid the sum of $1,500 to 2. Where the owner in fee purchases a judgment against the property, the assignment
Butler & Sharp, but failed to carry out their clearly showing an intent to keep the judgment agreement any further; whereupon the Comlien alive, no merger results.
et Consolidated Mining Company continued Appeal from district court, Arapahoe coun
to work upon the property during the years ty.
1883 and 1884, and incurred an indebtedness Action by Samuel V. Vaughn against the thereby which they had no funds to pay. Comet Consolidated Mining Company and
This indebtedness consisted of $1,000 borothers. From a judgment dismissing the ac
rowed by the company from Hudson, and tion, plaintiff appeals. Affirmed.
$6,087.77 for labor, materials, etc. For the This is a suit in equity by Samuel V.
latter amount the company gave its note to Vaughn against the defendants in error to set
Frost. The appellant and Hale, who were aside certain conveyances alleged to be fraud
then residing in Missouri, received notice of
this transfer to the Comet Consolidated Mini Rehearing denied March 5, 1895.
ing Company by letter from Sharp, dated