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(5 Colo. App. 477)

bank, to transfer a portion of this fund. It SNEDDEN v. DOERFFLER (HARMES, In- is upon this supposed intention that counsel tervener).

for the intervener rests his argument. We (Court of Appeals of Colorado. Jan. 14, 1895.)

know of nothing more useless for any purASSIGNMENT OF FUND-CHECK.

pose than a naked intention. The checks 1. An assignment by a creditor of part of a

could not operate as a transfer of anything debt without the cons of the debtor is in- except money to Doerfiler's credit in the valid.

bank. No intention, however well defined or 2. Defendant drew three checks in favor of intervener upon a bank in which was deposited a

distinctly expressed, could convert them incheck payable to the garnishee, but not yet in- to an assignment of the debt due from Cowdorsed by him, from which, upon indorsement, ing to Doerffler. The intervener had no was to be paid the amount of defendant's debt.

standing below, and he has none here. The Defendant intended by the checks to transfer a portion of the fund to be thus created. Held, judgment will be reversed. Reversed. that the checks would not operate as an assignment to intervener of the debt due defendant from the garnishee, so as to defeat plaintiff's rights under his garnishment.

(5 Colo. App. 466) 3. A check cannot operate as a transfer of

McQUOWN v. THOMPSON. anything but money actually to the credit of the maker in the bank.

(Court of Appeals of Colorado. Jan. 14, 1895.) Error to Huerfano county court.

CONFLICTING EVIDENCE-DIRECTING VERDICT. Action by Henry Snedden against Henry

Where the facts are in dispute both by Doerfller (Fred E. Cowing, garnishee). Wil

the pleadings and evidence, it is error to direct

a verdict. liam L. Harmes intervened. From a judgment for intervener for amount of his claim,

Appeal from district court, Arapahoe counplaintiff brings error. Reversed.

ty.

Action by Fred A. Thompson against LowH. A. Cole, for plaintiff in error. R. R.

ena McQuown. From a judgment for plainRoss and Henry Babb, for defendant in er

tiff, defendant appeals. Reversed. ror.

J. W. Horner and P. B. Godsman, for apTHOMSON, J. The plaintiff in error sued

pellant. Henry Doerfler for a debt, and caused Fred E. Cowing to be summoned as garnishee. THOMSON, J. Appellee was a real-es. The defendant in error intervened, claiming tate agent, and brought this suit against the that $94.20 of the money attached in the appellant to recover $350 as a commission hands of Cowing belonged to him, having charged for negotiating a sale of real estate been assigned to him by Doerfiler. The inter- belonging to her. After the evidence on vener had judgment for the amount of his both sides had been introduced, the court inclaim. The intervener's title to the money structed the jury as follows: "Under the depends upon the alleged assignment. The undisputed facts of this case as they appear amount owing by Cowing to Doerffler was from the pleadings and the evidence, the $143. If there was an assignment, it em- plaintiff is entitled to recover the usual and braced only a part of the demand. Such an regular rate of commission prevailing in the assignment can be made only with the con- city of Denver for making sales of real propsent of the party from whom the money is erty, which in this case to be $350. You will due. It is not allowable to a creditor to split therefore return a verdict in his favor for up his cause of action by assigning parts of it, that sum.” An instruction like this can be thus creating as many new causes of action justified only where the pleadings and evias there are assignments, without the con- dence leave no room for a difference of opincurrence of the debtor. Insurance Co. v. ion, and where the judgment which should Bullene, 51 Kan. 764, 33 Pac. 467; Welch v. be rendered is manifest and indisputable. Mayer (Colo. App.) 36 Pac. 613. There was If there is conflicting evidence concerning no pretense that Cowing ever consented, di- any material fact, or if the facts are inrectly or indirectly, to this alleged assign- volved in doubt, the case must be submit. ment. The only evidence introduced in sup- ted to the jury by proper instructions, and port of the allegation that the money was as- to direct a verdict is a usurpation of their signed to Harmes consisted of three checks, province. The complaint alleges a promise one for $33, one for $27, one for $31.20, drawn by the defendant to pay the sum charged. It by Doerffler in favor of Harmes, upon Wal- also alleges that the charge was fair and reasen & Wheeler's Bank at Walsenburg. The sonable. The answer denies the promise, checks were never presented for payment.

and denies that the charge was fair or reasonFrom some obscure statements in the record able. It also sets forth that the defendant it may be gathered that, when the checks was induced to receive, in place of money, were drawn, there was some kind of a check as part of the consideration of the property, in the bank payable to Cowing, and await- two notes aggregating $1,400, by represening his indorsement in order to be converted tations of the plaintiff, made as of his own into money, out of which the amount due knowledge, and upon which she relied, that Doerfler was to come; and that it was the notes were well secured, and were worth Doerfller's intention, by the checks upon the their full face value in cash; whereas they

were not well secured, and were practically , ing in support of the title of the intervener. worthless, so that she was unable to realize He testified that he purchased the norse anything upon them. The affirmative mat- from one Olin, and paid for it by putting ter is denied by the replication. The testi- screens in buildings owned by Olin; that mony of the plaintiff tended to support the he bought the animal about the middle of allegations of his complaint, and the evidence April; that about the 1st of May he went in behalf of the defendant tended to support to Olin, and got a bill of sale to his wife. her answer. The facts were in dispute, both This was corroborated by the testimony of by the pleadings and the evidence, and the Olin. The defendant, Baker, further said: giving of the instruction was error. The "He took the mare to pasture May 8th. The judgment will be reversed. Reversed. plaintiffs were after me at this time to pay

the debt.” Both Baker and the intervener

testified that Baker was indebted to the in(5 Colo. App. 452)

tervener in the sum of $100, for which the

latter had had his notes for two or three GOFF et al. v. BAKER (LANDON, Intervener).

years; that, on the morning of May 13th,

Baker and wife were returning from Aspen, (Court of Appeals of Colorado. Jan. 14, 1895.)

met intervener at Pueblo, at 5 o'clock in the ATTACHMENT- INTERVENTION SALE OF PERSOX

morning, and he proceeded to buy the mare, ALTY-CHANGE OF POSSESSION. 1. On the trial of the issues on an inter

which he had never seen; that he bought vention in the attachment of a horse, defendant

from Baker when his wife was not present, and intervener, who were brothers-in-law, tes- the consideration being Baker's indebtedness tified that the former owed the latter $100 on

and $26.75, then paid in money; that Mrs. 'notes; that after the attachment issued, and before levy, intervener bought the horse of de

Baker was then called upon, and made and fendant, without having seen it, or taking pos- delivered a bill of sale. Between Baker and session, paying therefor $26.75 in money, be

intervener, in giving an account of the transsides the indebtedness, and that defendant's wife made intervener a bill of sale thereof. In

action, the evidence in regard to the notes terrener testified that he held four notes against got considerably tangled. Landon testified defendant, but did not know the amount of that his wife and Mrs. Baker were sisters; each, nor the aggregate of all, and that he "did

that Baker had owed him something like n't turn them over." Defendant testified that the notes were turned over, and by him de

$100 for three years, and he held his notes stroyed, pending the action. On the former for it; that on the morning of May 13th, trial in justice's court neither mentioned any when the trade was made, was the first time notes, but testified that the indebtedness was for work, and that the amount of money paid

he ever had any conversation in regard to was $27.50. Held not to sustain a judgment for buying the horse. I had nothing to do intervener.

with his wife in a business way. I held 2. Under the statute of frauds (Gen. St. $

four of Baker's notes. I don't know how 1523), the sale of a horse without delivery of possession is void as to the seller's creditors,

much they were each. I haven't looked at though the purchase price is paid.

them for over two years. I don't know what

the face of the notes were." "I didn't have Appeal from county court, Arapahoe coun

the notes with me. I didn't turn them over." ty. Action in justice's court by Frank C Goff

Baker testified: “The notes which were reand others against H. O. Baker, accompanied

turned to me I destroyed. No one was presby attachment. E. R. Landon intervened.

ent when they were given to me. I tore There was a judgment for intervener, and

them up, and put them in the fire, after the plaintiffs appealed to the county court.

trouble had come up about the mare, while From a judgment on appeal by default for

these suits were pending." Two witnesses, intervener, plaintiffs appeal. Reversed.

who were present at the trial before the

justice of the peace, testified that both LanN. Q. Tanquary, for appellants.

don and Baker gave a different account of

the transaction upon that trial; that nothing REED, J. Plaintiffs, on the 9th day of was said about promissory notes, but that May, 1893, sued out an attachment against Baker owed Landon $100, for work; and one H, 0. Baker, which was levied on the both testified that the amount paid by Lan16th of May, upon one of two horses at pas- don in money at Pueblo was $27.50, instead ture some miles in the country. The pro- of $26.75, as sworn in the county court. It ceedings were commenced before a justice is evident that Mrs. Baker never was the of the peace. E. R. Landon intervened, and owner of the horse; that her pretended ownmoved the court to dissolve the attachment, ership was a ruse to prevent her husband's "on the ground that the defendant was not creditors from taking it. It also looks as if the owner of the property attached," etc. the pretended sale to Landon was collusive A trial was had, resulting in a judgment for and fraudulent, and concocted for the same intervener. An appeal was taken to the purpose. The fraud was so patent, the evicounty court, the defendant made default, dence should have been disregarded. a trial was had, resulting in a judgment for The judgment must also be reversed from the intervener, and an appeal prosecuted to the fact that there was no delivery of the this court. The testimony was indefinite horse, either actual or constructive. “Every and unsatisfactory, that of the defendant be- sale made by a vendor of goods and chattels. in his possession or under his control, and September 20th. The return of the sheriff every assignment of goods and chattels, un- upon the executions was that he had executless the same be accompanied by an immedi- ed the writs by selling the real estate thereate delivery, and be followed by an actual tofore levied upon, and described in the adand continued change of possession of the vertisement of sale, and which advertisethings sold and assigned, shall be presumed ment was attached to, and made a part of, to be fraụdulent and void, as against the the return. The advertisement recited that creditors of the vendor, or the creditors of by virtue of the writs of execution, describthe person making such assignment, or sub- ing them, he (the sheriff) had levied upon and sequent purchasers in good faith, and this taken in execution, in each of the cases, all presumption shall be conclusive." Gen. St. the right, title, and interest of Broadwell in § 1523. See Bassinger v. Spangler, 9 Colo. the real estate described, which he would of175, 10 Pac. 809; Baur v. Beall, 14 Colo. 383, fer for sale, etc. 23 Pac. 315; Goard y. Gunn, 2 Colo. App. The first question to be considered is wheth66, 29 Pac. 918. The judgment will be re- er there was any levy made by the sheriff versed, and cause remanded. Reversed. upon the property prior to the sale, and, if so,

whether there is any legal evidence of the

levy. As between Broadwell and a stranger, (5 Colo. App. 467)

purchasing without notice or knowledge of HERR v. BROADWELL.

any irregularities of the officer in the execu

tion of his writ, the question could not arise, (Court of Appeals of Colorado. Jan. 14, 1895.)

because the purchaser would have the right to EXECUTION LEVY VALIDITY ACTION TO SET ASIDE-ADEQUACY OF PRICE.

presume that all the acts of the officer under 1. Where the judgment plaintiff is the pur

the writ prior to the sale were in compliance chaser at the execution sale, the judgment de

with the law. He would be bound only to fendant may, in a direct, action, question the know that there was a valid judgment, upon validity of the levy. 2. In the absence of a statutory provision

which execution was regularly issued, and for the levy of execution on land in the county

that the land had been properly advertised where the judgment was rendered, a sale on ex- for sale. His title would rest upon the judgecution is valid, without an indorsement of the

ment, the execution, the sale under it, and levy on the writ, where the return thereto, made during the life of the writ, contains a copy

the sheriff's deed. Jackson v. Sternbergh, of the notice of sale, which recites a levy under

1 Johns. Cas. 153; McEntire v. Durham, 7 the writ.

Ired. 151; Blood v. Light, 38 Cal. 649; Hol3. A sale of land on execution will not be

man v. Gill, 107 Ill. 467. set aside for inadequacy of price where the land was incumbered for nearly its sworn value.

But in this case the purchaser was the Appeal from district court, Arapahoe coun

judgment plaintiff, and this is a direct pro

ceeding to avoid the sale; so that the acts of ty.

the officer while the execution was in his posAction by James M. Broadwell against Theodore W. Herr. From a judgment for

session are perhaps a proper subject of in

quiry. A party is probably not entitled to plaintiff, defendant appeals. Reversed.

the benefit of presumptions of which a stranT. J. O'Donnell and W. S. Decker, for ap- ger may avail himself; and upon the hypothpellant.

esis that he is not, and that, in this form of

action, his title depends upon the regularity THOMSON, J. This is a proceeding to can- of the acts of the sheriff, a determination of cel a sheriff's deed to real estate, and permit the question whether a sufficient levy was the plaintiff to redeem the property, on the made prior to the sale becomes necessary. grounds that no legal levy of the execution A levy upon personal property is made by upon the land was made, and that the price the officer having the writ seizing the prop. for which the property was sold was inade- erty, and taking it into his possession, but quate. The facts are these: Herr had re- in the case of real estate a levy cannot covered two judgments against Broadwell, made in this manner. The sheriff cannot -one in an action numbered 9,999, for costs; enter into the possession of real property, and one in an action numbered 11,032, for or in any way interfere with or disturb the $64.55 and costs. On the 18th day of July, possession of the debtor. When a writ of 1890, execution was issued upon the judg- execution is issued from the district court ment in case No. 9,999; and on the 26th day of one county to the sheriff of another, and of August, 1890, an alias execution was is- levied upon real estate in the latter county, sued upon the judgment in case No. 11,052. our statute provides that the officer shall No levy was indorsed upon either of the make and file in the recorder's office of his executions. On the 30th day of August, 1890, county a certificate of the levy. Gen. St. the sheriff advertised certain real estate of 1883, 88 1884-1886. But the law prescribes Broadwell, situate in Arapalioe county, for no method of procedure where the real essale upon the executions, in the Colorado tate is in the same county in which the judgGraphic, a weekly newspaper published in ment is rendered. In such case, as to the the city of Denver. The advertisement was manner in which the levy shall be made, or published for the statutory period, the first how it shall be evidenced, the statute is publication being August 30th, and the last silent. There is no appearance for Broad. well in this court, and we are without the There was no proof of fraud in the sale, or of benefit of any suggestions upon the subject any other fact which would authorize a court which might have been made in his behalf; of equity to disturb it. The judgment will but from the pleadings and evidence, and be reversed. Reversed. the opinion delivered by the trial judge in deciding the case, it would appear that the plaintiff's contention was that the levy, to

(5 Colo. App. 427) be effective, should have been indorsed upon GERMAN NAT. BANK OF DENVER v. the executions. Where the acts necessary

NATIONAL STATE BANK to a valid levy are prescribed by law, it is

OF BOULDER. only necessary to follow the established

(Court of Appeals of Colorado. Jan. 14, 1895.) procedure, and in a given case there is noth

NOTICE OF GARNISHMENT - MISTAKE IN DEBTOR'S ing for decision except whether this has been NAME-EFFECT--KNOWLEDGE OF GARNISHEE. done or not; but where, as in this state, 1. Notice of garnishment served on a bank, there is no legislation upon the subject, the

naming the debtor as "W.J. M.,' does not reach question of what constitutes a sufficient levy

money due at the time by the bank to "W. G.

M.," and subsequently paid out by it, unless the upon real estate is not always easy of reso- bank had actual knowledge of the identity of lution. As the officer cannot reduce the land the debtor and the person named in the process. to possession, or do any act upon it against

2. In such a case, testimony of a witness

that, from a conversation he had with the cashthe will of the owner, all that can be requir

ier of garnishee, he got the "impression" that ed is that he designate the particular land the cashier was at the time aware of the debtwhich he intends to subject to his execution or's identity, and the testimony of another wit

ness that he understood from the same converin such way that it may be identified, and

sation that the cashier knew who was intended, this he can do without leaving his office if “because there was not a word in his conversabe has the proper information. The desig- tion to the contrary," will not sustain a finding nation is a mental act; but, in order that it

that the cashier knew of the debtor's identity,

where the cashier testified that he did not in may be valid as a levy, it must be embodied

that conversation say, either directly or in subin some visible memorial,--some record of stance or effect," that he knew who was meant what was done, accessible to the judgment

by the garnishee writ. debtor and to the public. Strictly speaking, Appeal from district court, Boulder county. the record is not itself the levy; it is merely Action by the National State Bank of Bouldthe evidence that the levy was made. But, er against W. G. Motley, followed by attachas the statute does not require that the rec- ment (German National Bank of Denver, garord shall be made upon the writ, no reason is nishee). From a judgment for plaintiff, the apparent why it may not be made elsewhere, garnishee appeals. Reversed. provided it is equally public and permanent. Hartzell & Patterson, for appellant. R. H. See Vroman v. Thompson, 51 Mich. 452, 16

Whiteley, for appellee. X. W. 808; Hamblen v. Hamblen, 33 Miss. 455; Rodgers v. Bonner, 45 N. Y. 379; Dun- REED, J. This case was before this court can v. Dlatney, 29 Mo. 368. In this case the on a previous occasion. See 3 Colo. App. fact of the levy was not indorsed upon the 17, 31 Pac. 122. In 1890, W. G. Motley was executions; but during their life, and by indebted to appellee on a promissory note, their authority, the sheriff advertised certain which became due in December of that year. specified real estate for sale. The advertise- In January, 1891, the bank brought suit upment set forth that the officer had levied on the note, and sued out an attachment upon the property by virtue of the execu- against W. J. Motley. Appellant was served tions, and this advertisement was incorpo- with process of garnishment, with notice to rated into his return upon the writs, and so answer indebtedness to W. J. Motley. The became a part of the record of the cases. cashier of the bank answered, denying any Here was a record of the levy, which was ndebtedness to W. J. Motley. The answer made in such manner that it was notice to was traversed by appellee. A trial was had, all the world of the fact. It was certainly resulting in a judgment against appellant. as public and as accessible as if it had been

An appeal was prosecuted to this court, the indorsed upon the executions; and, upon be judgment reversed, and cause sent back for ing made a part of the return, it became a

retrial. The trial occurred April, 1893, again permanent memorial. We think the levy was resulting in a verdict and judgment against valid, and the evidence of it sufficient.

appellant for the sum of $798.21 and costs, Gross inadequacy of consideration is a from which this appeal is prosecuted. By circumstance to be considered in connection reference to the former opinion, it will be with other facts where it is sought to set seen that this court held that the full name aside a sale of real estate, but alone it is or proper initial letters were necessary in a not sufficient. In this case, however, it is proceeding of that kind, and that a writ of not clear that the price paid was greatly attachment and notice of garnishment less than the property was worth. It was against “W. J. Motley” would not reach bid off for $118.35. It was shown to be worth moneys due “W. G. Motley." At the time from $3,500 to $4,000; but it appears from of the service of notice upon appellant, it the evidence that it was incumbered to an had funds of W. G. Motley in its possession, amount nearly equaling its Sworn value. which it subsequently paid out in full upon checks. We are perfectly satisfied with the the answer of the garnishee that the bank former opinion, on the case then made, and was not indebted to W.J. Motley was legally affirm it. In the intricate and complicated and technically correct. Consequently what business of banking, absolute exactness and remained was a question of bona fides,-particularity in regard to names is absolutely strictly a question of morals. By the former indispensable, not only for the security of opinion that was made an element, ,-a factor; the bank, but of those doing business with but the language of the court was: “Unless it. In many instances there are many of the it be in those cases where the proof may same surnames, and frequently with the show that the garnishee had actual knowlsame first initial letter; and, where the full edge of the identity of the debtor and the pame is not used, it frequently occurs that person named in the process." To recover, the second or intermediate initial is all that the proof must have established the actual distinguishes one name from another; and knowledge. A careful examination of the a bank disregarding the middle initial as a evidence shows that it came far short of the part of the name would be very likely to find requirement. Mr. Nicholson, the cashier of itself in trouble by allowing one man to appellee, and Mr. Temple were the witdraw upon the account of another. If such nesses by whom it was sought to make proof trouble occurred, no bank could shield itself of knowledge. Some days after appellant's from responsibility by ignoring the only dis- answer was filed to the process of garnishtinctive difference between the names of two ment, they had an interview with Mr. Clin. persons. When banks are necessarily held ton, cashier of appellant, and the knowledge to such strict accountability, it is not asking was attempted to be shown by admissions of too much that in proceedings against them Clinton. Neither could give the language the individual sought to be reached should used. One got the "impression” that he adbe so designated as to leave no doubt in re- mitted he did know who was meant. The gard to the identity. Banks cannot presume other (Temple) said: “I understand that he that John A. Smith and John W. Smith are admitted that he knew who was intended, the same person.

Creditors are supposed to because there was not a word in his conknow the names of their debtors, especially versation to the contrary." No actual knowl. when, as in this case, the indebtedness is evi- edge on the part of the cashier was shown or denced by a promissory note, and in bring- attempted. The supposed admissions ating suit should be held to bring the suit tempted to be established were some days against the proper person, or suffer the pen- subsequent to the transaction, and were, if alty of their own negligence.

Where a per

of any value, only what he then knew or son opens a bank account under a fictitious thought, but not of knowledge at the time name, and the process is sued out in the real of the transaction. The evidence, even of name, the identity should be established to such supposed admissions, was vague and the officers of the bank when it is sought to indefinite, apparently the result of inference reach the fund. There is no doubt but that, or presumption; and not based upon anyif actual knowledge of the identity was thing said by Clinton, who testified: "I had brought home to the knowledge of bank offi- no knowledge as to who was meant.” In cials, the bank would be held chargeable. reference to the conversation Mr. Clinton In the former opinion of this court the said: "I did not in that conversation say, learned judge who wrote it carefully guard- either directly or in substance or effect, that ed against any misconception, and said: I knew who was meant by the garnisbee "There was no showing in the present case

writ. It was not true.” that the bank had any knowledge whatever The verdict of the jury was unwarranted that their depositor was the one sought to be by the evidence. There was no evidence upreached by the process at the time they paid on which it could be based; was evidently out the money on his checks. Confining the the result of prejudice, or based upon predecision to this particular class of cases, it sumptions from the facts; was not in obediis held that a garnishee is totally unaffected ence to the instructions of the court, which by any notice which may be served upon were: "If the jury believe from the evidence him, unless it properly runs with an accurate that the garnishee bank, through its cashier, description against the individual to whom Clinton, knew that its depositor W. G. Mothe may be indebted, unless it be in those ley was the one sought to be reached by the cases where the proof may show that the gar- process of garnishment herein at the time nishee had actual knowledge of the identity they paid the money on his checks after garof the debtor and the person named in the nishment, then the plaintiff is entitled to reprocess."

covery." "You are further instructed that Upon the retrial of this case there was it is incumbent on the plaintiff to prove its practically but one question to be determin- case by a preponderance of the evidence." ed,-the question of knowledge and good Both were violated by the verdict, bringing faith upon the part of appellant. That the it clearly within the exception to the general process ran in the name of W. J. Motley was rule of the conclusiveness of verdicts as to conceded. It was also conceded that it was the finding of facts. There was no evidence an error, and that the true name was W. G. of any knowledge on the part of appellant's Motley. In the former opinion in this case officers. The evidence attempting to estab

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