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swered that it was indebted to the defend- tice of the peace contains pothing whatever ant, Forbes, in the sum of $87.65. The in regard to the loss of papers, the affidavit, venue was changed from Bradford to one or substitutions of copies. For the purpose Brosius; a trial had, resulting in a judg- of instituting a suit by attachment and ment for the defendant and a discharge of obtaining a judgment against a garnishee the garnishee, to whom a certificate of dis- a copy of blank forms would have been fully charge was delivered. An appeal was taken as efficient. There was no appearance in to the county court, no notice of which was the attachment proceeding in the county served upon the garnishee. After the re- court nor by the garnishee to confer jurisceipt of the certificate of discharge, appel- diction. The jurisdiction of the county court lant paid Forbes the amount due. The de- was wholly dependent upon the regularity fendant appeared by counsel in the county of the proceeding and the acquiring juriscourt. A trial was had, resulting in a judg- diction by the justice of the peace. The tranment for the plaintiff, and judgment was en- script sent up established the want of juris. tered up against the garnishee upon its an- diction. The affidavit of counsel, stating that swer, and an appeal to this court taken by the papers substituted were correct copies of the garnishee. On the 2d day of June, 1893, the originals, precludes any presumption of the following paper was filed with Bradford, the regularity of the originals. If this were the justice of the peace before whom the not so, no presumptions could be indulged in proceedings were pending (Dyer was attor. in regard to these statutory proceedings, ney for the plaintiff):

where the facts establishing the jurisdiction “On the 17th day of May, A. D. 1893, an must affirmatively appear upon the face of affidavit in attachment, an undertaking in the records. Proceedings in attachment and attachment, an attachment writ, a garnishee by garnishment are purely statutory, in dersummons, and a summons were filed in the ogation of the common law, and in the nature above-named court, in this action, of which of proceedings in rem; and the statute must the papers hereto attached are true copies. be literally and specifically followed, and That the said original papers have been mis- departure vitiates the proceeding, and ren. laid, lost, or stolen, and that, after a search ders it void. These propositions are so elemade by the above-named J. P. the same mentary that authorities hardly need be cit. cannot be found. That this affiant does ed in their support, but see Drake, Attachm. not know where the said original papers $$ 451b, 452; 1 Wade, Attachm. $ 121; Wap. now are, nor where they can be found. Jo- Attachm. 139; Edler v. Hasche, 67 Wis. 653, seph Dyer.

31 N. W. 57; Harvesting Mach. Co. v. James, “Subscribed and sworn to before me this 84 Wis. 600, 54 N. W. 1088; Ettlesohn v. 2nd day of June, A. D. 1893. Thos A. Insurance Co., 64 Mich. 331, 31 N. W. 201. Bradford, Justice of the Peace."

In the last case it is said: "If a creditor After the substitution, the case proceeded seeks to collect his debt under this statute, upon the substituted papers. The judgment the reasons are abundant and manifest why appealed from must be reversed. The coun- he should pursue the statute strictly, and ty court had no jurisdiction in the proceed- under the most strict construction. The ing by attachment. The appearance by the proceeding is founded upon the affidavit redefendant in the county court must be re- quired by the statute. If this affidavit is degarded as in the main suit, and not in the fective, the court acquires no jurisdiction. attachment proceedings. The papers sub- It is not a case in which jurisdiction can be stituted in the justice's court to supply the acquired by voluntary appearance of the place of those alleged to have been lost or parties, or aided by presumptions. Neither stolen, and sworn to be true copies, could can any substantial requirement of the statnot confer jurisdiction upon either court. ute be waived in any of the proceedings by The affidavit for the attachment, purporting the debtor garnished, because others have an to have been made by Druly, the attorney of interest in the result quite equal with those the plaintiff, has no jurat whatever. The of the parties to the suit." The county bond is not in form, and was executed by court could acquire no jurisdiction upon apthe plaintiff's attorney for him, without any peal when the inferior court was without authority being shown; hence, was void. jurisdiction; and when the transcript of The justification of the parties to the bond the lower court shows its lack of juriswas blank, and no jurat attached. A sery- diction the appellate court had none for ice of the summons was indorsed upon it any purpose whatever, and, although the by the constable. The writ of attachment appearance of the defendant in the county was blank, not signed by the justice of the court may have conferred jurisdiction to try peace, nor was any return of service in- the question of indebtedness, it was inefdorsed upon it. The writ of garnishment | fectual to confer jurisdiction in the attachand interrogatories attached were not sign- ment and garnishee proceedings. The judg. ed by the garnishee, nor verified, nor any ment will be reversed, and cause remanded. jurat attached. The transcript of the jus- | Reversed.

(6 Colo. App. 34) BUCHANAN V. SCANDIA PLOW CO. OF

ROCKFORD, ILL. (Court of Appeals of Colorado, March 11,

1895.) REPLEVIN-DIRECTION OF VERDICT - PLAINTIFF'S

RIGHT TO PossESSION JUDGMENT BY CONFESSION-VALIDITY-COLLATERAL ATTACK ON JUDGMENT.

1. A charge, in a replevin suit, directing a verdict for plaintiff on the ground that a judgment under which the defendant claims the property has been proven void, is erroneous, as taking from the jury the question of plaintiff's ownership and right of possession.

2. A judgment entered against a firm upon confession of one partner is void.

3. A judgment by confession in favor of a creditor who has not brought suit, or made any demand, is void as to the other creditors.

4. An attack, in a replevin suit, on a judgment under which the defendant claims the goods, as being invalid on its face, is not a collateral attack,

Appeal from district court, Sedgwick county.

Action by the Scandia Plow Company of Rockford, Ill., against Dixon Buchanan. From a judgment for plaintiff, defendant appeals. Reversed.

An action in replevin, brought by appellee (plaintiff) against appellant (defendant) to recover a lot of farming implements and machinery. The complaint was in the usual form. Defendant answered–First, denying generally the allegations of the complaint; second, that he was sheriff of Logan county, and was in the possession of the goods by virtue of a writ of execution issued out of the county court of the county upon a judgment in favor of the Keokuk Stove Works Company against the goods of Gordon & Chindgren, and that the goods were those of that firm at the time of the levy. In reply it was denied that the goods were the property of Gordon & Chindgren, and denied that the Keokuk Stove Works recovered a judgment against Gordon & Chindgren, or had judgment at the time of the pretended levy, and that defendant ever levied any execution upon the property. A jury was called and impaneled to try the case, all the evidence of the parties introduced, and the court, upon the close of the testimony, instructed the jury to find for the plaintiff, which was done, and judgment entered for the plaintiff, from which an appeal was taken to this court.

J. S. Carnahan and Chas. L. Allen, for appellant. J. B. Sweet, for appellee.

by Gordon & Chindgren to the plaintiff, possession taken, the goods separated from the balance of the stock, placed in a shed upon the premises of Gordon & Chindgren by the agent of the plaintiff, and the shed locked. Third. That the alleged judgment of the Keokuk Stove Company against Gordon & Chindgren was void; consequently, that the writ of execution was also void.

It is urged that the court erred in directing a verdict in favor of the plaintiff. It is evident that the court decided as matter of law that the alleged judgment and writ of execution were void, and that, the defendant's attempted justification under them having failed, the defendant claiming no right to the possession except under them, the right of the plaintiff was established; hence all that was necessary was to direct a verdict. This was erroneous. It left the issues in regard to the ownership of plaintiff and its right of possession untried. Plaintiff, to maintain its action, must have primarily and affirmatively established its title to or right to possession of the goods. Failing to do so, no recovery could be had. That title depended upon establishing one of two facts, -either that the original sale by the plaintiff to Gordon & Chindgren was conditional, and that plaintiff remained the owner, and that no title had passed, or that Gordon & Chindgren had reinvested the plaintiff with the title by turning over the goods in discharge of their indebtedness, or in payment of the same, and that the plaintiff had so taken them, and that the possession had been taken by the plaintiff, and was exclusive of any possession or control by Gordon & Chindgren. These questions of fact were, under the evidence, and proper instructions of the court, to be found by the jury, and must have been found regardless of the question of the validity of the judgment. The allegation in the complaint was "that plaintiff was the owner, and entitled to the immediate possession." This was trav. ersed by the answer, and must have been found by the jury. In the special answer it was averred that the goods were the property of Gordon & Chindgren. It is a good defense to an action of replevin that at the time the action was brought the plaintiff had no right to the possession. Clark v. West, 23 Mich. 242; Belden v. Laing, 8 Mich. 500. “A plaintiff in replevin must stand on his title, and any defense going to impeach his title is proper.” The plea of property imposes upon the plaintiff the necessity of establishing it and the right of exclusive possession. Çobbey, Repl. $ 784. “Any defense which controverts plaintiff's right of possession at the time, the suit was commenced is allowable, and, if the question raised by plaintiff is one of title, any defense that shows title in some one else is proper.” Id. § 783, and cases cited. By the special plea or answer it is averred that the property was that of Gordon & Chindgren, and there

REED, J. (after stating the facts). The traverse of the allegations of the complaint put the plaintiff upon its proof of title or right to the possession of the chattels. The first fact attempted to be established was that the goods were furnished by the plaintiff to Gordon & Chindgren; that the sale of them was not absolute, but conditional, and no title ever passed Second. That previous to the alleged levy the goods were redelivered

was an attempted justification. “When the erally. The attack was not collateral. De property belongs to a third party, the plain- fendant attempted to justify under a judgtiff cannot recover. Anything going to show ment and writ. His defense was affirmative. that the plaintiff had no right to the posses- Upon him rested the burden of showing a sion when he commenced his suit, is a com- valid judgment. For this purpose he put plete bar to the action.” Id. $ 785; Clark v. in evidence a record showing upon its face West, supra; Belden v. Laing, supra; De- its want of validity. For the guidance of the laney v. Canning, 52 Wis. 266, 8 N. 897; court upon another trial, we will say that, Holderman v. Manier, 104 Ind. 118, 3 N. E. no valid judgment having been obtained by 811. The court properly found that the al- the Keokuk Stove Company at the time of leged judgment and writ of execution under the alleged transaction, the goods at the time which the defendant attempted to justify

of seizure were either those of Gordon & were void. To avail as justification under Chindgren or the plaintiff. At the time of plea of legal process, the writ must be valid the alleged transfer to the plaintiff, so far as and legal. Griffith v. Smith, 22 Wis. 616; appears from the record, Gordon & ChindGist v. Cole, 2 Nott & McC. 456; Dayton v. gren had a legal right to transfer and set over Fry, 29 Ill. 525.

the goods to the plaintiff in payment of a It is contended upon the part of appellant

bona fide indebtedness; and, if they had done that the supposed confession of judgment by so, and the goods had been delivered to, and Gordon for the firm without any authority

the possession retained by, the plaintiff, its from the partner was void. This contention

title was valid, regardless of the question of is abundantly sustained by authority. Black,

absolute or conditional sale by it to Gordon Judgm. & 57; Bitzer v. Shunk, 1 Watts & S. & Chindgren in the first instance. If the 340; York Bank's Appeal, 36 Pa. St. 458;

plaintiff relies upon a conditional sale of the Soper v. Fry, 37 Mich. 236; Hopper v. Lucas, goods, and a resumption of the possession, such 86 Ind. 43. “In a pending action against

facts must be legally established. Conditiontwo defendants one of them cannot, in the

al sales, without notice to other creditors of absence of the other, confess judgment

the fact or conditions, are not favored by the against both; and a judgment rendered courts. Like other secret trusts, they are reagainst both on the confession of one only, garded as furnishing too great facilities for without evidence, will be set aside.” Black,

fraud. As to how they are regarded in this Judgm. $ 55; Wiggins v. Klienhans, 9 N. J. state, see a very late, able, and elaborate Law, 249; Ballinger V. Sherron, 14 N. J.

opinion by the supreme court in Jones v. Law, 144. Counsel for appellee contends that

Clark, 38 Pac. 371, and Harper v. People, 2 the presumption of regularity, and the pre

Colo. App. 177, 29 Pac. 1040. But in the sumed authority of the party appearing to rep

case under discussion, no other creditor hay. resent his partner, must prevail. The an

ing legally intervened to assert rights against swer to this is very brief. No presumptions the property, the question of the character of arise dehors a record; its legality must ap

the sale or the title to the property could only pear upon its face. The statement of record arise between the plaintiff and Gordon & is that Gordon, one of the defendants, and a

Chindgren; and, the latter offering no conmember of the firm of Gordon & Chindgren,

tention, but acquiescing in the title of the "and the defendants in this action, per George

plaintiff, it seems immaterial whether the W. Gordon, filed their confession of judg.

plaintiff at all times remained the owner and ment," etc. It appears upon the face of the regained the possession, or, by the act of Gorrecord that the court was without jurisdic

don & Chindgren, became the owner in the tion as to Chindgren, and the judgment payment of the debt. Either, if legally esagainst the firm void. Aside from this, there

tablished, so as to show the title and possesis another and fundamental reason why the

sion of the plaintiff invaded by the act of judgment should have been held void, as

taking, would be sufficient, as against a tresshown by the record. No suit had been in

passer or wrongdoer, to maintain the action. stituted nor pending. The voluntary appear

The judgment will be reversed, and cause reance of Gordon and attempted confession manded for a new trial in acordance with this were the inception of the proceeding. No opinion. Reversed. claim or demand by complaint or otherwise had been made by the plaintiff. The Civil Code provides how suit shall be instituted

(6 Colo. App. 66) and when pending. There is no provision

BEENEY, County Treasurer, v. IRWIN. whereby a party can institute a suit against (Court of Appeals of Colorado. March 11, himself, and confess a judgment for what

1895.) ever amount he may see fit. Although, in

MANDAMC'S TO COUNTY TREASURER-COUNTIESthis instance, the proceeding may have been

ALLOWANCE OF CLAIMS. honest, and the amount capable of proof, such

1. Mandamus will lie against a county treaspractice opens too wide the door for fraud

urer to enforce payment of warrants drawn by and collusion, and cannot be held valid as order of the county commissioners upon an exist. against other creditors.

ing and sufficient fund.

2. A county treasurer has no power to pass It is urged that the validity of the judg

upon the legality of claims allowed by the board ment and writ could not be attacked collat- of county commissioners.

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or

BISSELL, P. J. This was a proceeding by way of mandamus, brought by Irwin, the appellee, against the treasurer of Washington county, to compel him to pay two county orders, which were set out in his petition. It may be suggested that what are gathered from the petition and answer and stated as facts are expressly made such by stipulation of parties. Both have agreed that whatever is contained in either may be taken as true. Each bas stated in his pleading whatever he believed necessary for the maintenance or defense of the proceeding. Continuing with the. statement, it appears that in July, 1892, the chairman of the committee on printing of the board of county commissioners of the county entered into a contract with Irwin, which substantially provided that for the ensuing year Irwin should do the county printing, and for it receive as a compensation the unexpended balance of the printing fund then remaining in the hands of the county treasurer. This fund appears to have been a suin set apart by the board out of the general funds of the county, to be applied to this specific object. According to the contract, Irwin was to furnish stationery, and print letter heads, envelopes, and various memoranda essential to the use of the county, and the tax list for the year 1892. This last item is ied, because in reality the defense is based on it. Under the agreement, Irwin did considerable general printing, and furnished materials, which were used by the county. He alleged that he had duly kept and performed all the conditions of the agreement on his part. He set up that he filed a claim with the brard in 'October, 1892, which the board audited and allowed, and ordered a warrant drawn for $186.65, which was accordingly issued and delivered to him. According to its recital, it was for county printing out of money belonging to the printing fund, and payable solely therefrom, in the order of its registered number, and not otherwise. Irwin likewise set up that subsequently, and in November, 1892, he presented another bill, and received another county order for the sum of $285, which contained the same limitations and conditions. It was stated that the board of county commissioners had audited the bills, allowed the claims, and directed the warrants to be issued. They were made out by the proper authorities, properly signed, and delivered to the petitioner. At the time the warrants were presented to the treasurer, there was in his possession moneys prop

erly applicable to the payment of these warrants. This fund had previously been designated and set apart as a printing fund. The treasurer declined to pay the warrants. ACcording to his answer, he relied upon two matters by way of defense. The first, which related to an alleged defect in Prindle's title to the office of county commissioner, was abandoned on the argument. He was chairman of the committee on printing, and executed the contract with Irwin. This defense will not be further noticed. The other de. fense rested solely on an allegation that neither Prindle, as chairman, nor the board of county commissioners, as such, bad any authority whatever to contract with Irwin for the publication of the tax list of 1892. The treasurer insists that he alone was authorized to make the contract, and that a part of the consideration for the warrants and bills audited and allowed by the board included the compensation for the publication of such list. On these facts a peremptory writ was dered to issue against the treasurer, who brings the case here by appeal.

We do not intend to discuss or dispose of the question of the authority of the board or of the treasurer with reference to the publication of the tax list. According to the view which we take of the case, the matter can be satisfactorily resolved without the determination of that question, and we are of the opinion that there is not enough in the present record to enable us to decide it satisfactorily. We can very readily see how an adverse decision on this matter might seriously embarrass the county in the collection of its revenue, and might cast some shadow upon the validity of the proceedings which may have been taken under any advertisement which was made to enforce the collection of the taxes. Since we have concluded the treasurer was without right to make the defense which he set up, we will adjudicate the rights of these parties without any discussion which might affect other and collateral interests. Nothing whatever that is said in this opinion is to be taken as in any way an intimation of the views of the court respecting the validity of the advertise. ment or the settlement of the query where the power is vested to make a contract for advertising a tax list. Mandamus was an appropriate remedy, which Irwin had a right to invoke to enforce the payment of his warrants. This question was virtually settled in an early case, decided in 1892. Hockaday V. Commissioners, 1 Colo. App. 362, 29 Pac. 287. While the court was not a unit on all the questions involved in that litigation, there was no diversity of opinion respecting the right to this remedy under certain circumstances. The principal opinion, rendered by Judge Reed, conceded that, where warrants were drawn on a special fund, and there was money belonging to it in the hands of the proper officer, mandamus might be resorted to to compel its payment. The case

went off on another ground, and the major- the amount of money named in the order. ity of the court held that, although manda- It is difficult to exactly apprehend the basis mus was, under some circumstances, a prop- for this contention. No statute is cited er remedy, yet, under the facts in that case, which gives to the county treasurer this suand the proceedings which had been taken, pervisory power over the governing body of the matter was not open for adjudication. the county. An authority is cited from CalIn the dissenting opinion which I filed in ifornia, which seems to hold that, where a that matter I indulged in quite an extended board of county commissioners has issued a discussion of the right to this remedy, and warrant without legal right, the treasurer of the circumstances under which it was may refuse to pay it. A general expression both available and exclusive. On pages 390, of this sort is found in Connor v. Morris, 23 391, and 392, 1 Colo. App., and page 287, Cal. 447. The decision was put on the pre29 Pac., this discussion can be found, with cise ground that it was evident from the recthe authorities which were relied on to con- ord the board was absolutely without juris. firm the position. There was no disagree- diction to issue the particular order on which ment among the members of the court as to the proceeding was based. This opinion the law on this particular proposition, but must be read, however, in conjunction with we simply differed as to the necessity of its two earlier cases by the same court: El Doapplication. I may, without impropriety, rado Co. y. Elstner, 18 Cal. 144; Keller v. refer to this discussion, in order to illustrate Hyde, 20 Cal. 594. These clearly decided and emphasize the brief statement now that wherever the board had authority to act made. In the absence of a statute directly in the premises, or wherever the board of authorizing an action at law against the county commissioners had the right to issue county to recover the sum due on a county the order for any part of the audited claim, order, it is generally true that mandamus the treasurer may not undertake to deteris the appropriate remedy. All the circum- mine the legality or the illegality of the orstances necessary to make this remedy a der, but must pay it on presentation, if othproper one concur in the present case. There erwise the situation of the funds permit it. was a specific legal right to a certain amount We cannot infer an intention to overrule the of money, evidenced by an order issued by earlier cases, for by a reference to the Keller the county government. The board which Case it is expressly approved. In turn that directed it to issue had authority to pass on case is based on the other. It follows that the creditor's claim, and a right to draw a the three must be examined to learn the rule warrant on the treasurer. The order was accepted by the court. To us it clearly drawn on a definite fund. In order to en- seems to be what has been stated. We title the creditor to his money, he must show should, in any event, be inclined to doubt the that there was a fund in the treasury at proposition stated in the Connor Case. We the time of the presentation of his order need not directly disagree with that authori. properly applicable to the payment of this ty, because the present controversy lacks the claim. He could not maintain an action principal feature which entirely determined against the county, and recover a general that decision. According to the present recjudgment, which is the only thing which can ord, Irwin had done printing for the county, be entered in a civil action for money, for and had furnished stationery of the descripin such event the judgment would be paya- tion which the treasurer conceded the board ble otherwise than according to the terms could contract about without the right on of the order. It would manifestly be im- his part to question the legality of their propossible, in that sort of an action, to enter ceedings. The treasurer simply insists, as a judgment directing the treasurer to pay to the part of the warrant which included the plaintiff a particular sum of money out the printing of the tax list, the board had of a specific fund. It is thus clear that Ir- no jurisdiction to contract, audit, or allow win had a right to file his petition for a writ the claim, and consequently he was at libof mandamus. If, on the hearing, the court erty to decide how much of the warrant he should find there was money in the printing should pay and how much he could withfund sufficient to pay his warrant, and Irwin hold. We do not believe, under the circumwas entitled to payment under the order of stances, he had any such prerogative. The registration, it could direct the treasurer to statute which defines his duties and grants pay him. Vide authorities, 1 Colo. App. 392, powers to boards of county commissioners 29 Pac. 287. We therefore conclude Irwin permits of no such construction. As we was entitled to maintain his petition for a said in Commissioners v. Lee, 3 Colo. App. mandamus, unless the treasurer's defense 177, 32 Pac. 841: "Under the statutory plan was effectual to bar the remedy. This we which divides the state into counties, and cannot concede.

regulates the government of those territorial It is insisted on the part of the county subdivisions, all power to fix, control, detertreasurer that it is his privilege and preroga- mine, or in any manner dispose of the funds tive to determine the legality of the action of a county is devolved on the board of counof the board of commissioners where they ty commissioners. They alone have the have audited and allowed a claim and made right to disburse the public moneys, and an order on him which directs him to pay to decide in what cases, and under what cir

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