swered that it was indebted to the defendant, Forbes, in the sum of $87.65. The venue was changed from Bradford to one Brosius; a trial had, resulting in a judgment for the defendant and a discharge of the garnishee, to whom a certificate of discharge was delivered. An appeal was taken to the county court, no notice of which was served upon the garnishee. After the receipt of the certificate of discharge, appellant paid Forbes the amount due. The defendant appeared by counsel in the county court. A trial was had, resulting in a judgment for the plaintiff, and judgment was entered up against the garnishee upon its answer, and an appeal to this court taken by the garnishee. On the 2d day of June, 1893, the following paper was filed with Bradford, the justice of the peace before whom the proceedings were pending (Dyer was attorney for the plaintiff):

"On the 17th day of May, A. D. 1893, an affidavit in attachment, an undertaking in attachment, an attachment writ, a garnishee summons, and a summons were filed in the above-named court, in this action, of which the papers hereto attached are true copies. That the said original papers have been mislaid, lost, or stolen, and that, after a search made by the above-named J. P. the same cannot be found. That this affiant does not know where the said original papers now are, nor where they can be found. Joseph Dyer.

"Subscribed and sworn to before me this 2nd day of June, A. D. 1893. Thos A. Bradford, Justice of the Peace."

After the substitution, the case proceeded upon the substituted papers. The judgment appealed from must be reversed. The county court had no jurisdiction in the proceeding by attachment. The appearance by the defendant in the county court must be regarded as in the main suit, and not in the attachment proceedings. The papers substituted in the justice's court to supply the place of those alleged to have been lost or stolen, and sworn to be true copies, could not confer jurisdiction upon either court. The affidavit for the attachment, purporting to have been made by Druly, the attorney of the plaintiff, has no jurat whatever. The bond is not in form, and was executed by the plaintiff's attorney for him, without any authority being shown; hence, was void. The justification of the parties to the bond was blank, and no jurat attached. A service of the summons was indorsed upon it by the constable. The writ of attachment was blank, not signed by the justice of the peace, nor was any return of service indorsed upon it. The writ of garnishment and interrogatories attached were not signed by the garnishee, nor verified, nor any jurat attached. The transcript of the jus

tice of the peace contains nothing whatever in regard to the loss of papers, the affidavit, or substitutions of copies. For the purpose of instituting a suit by attachment and obtaining a judgment against a garnishee a copy of blank forms would have been fully as efficient. There was no appearance in the attachment proceeding in the county court nor by the garnishee to confer jurisdiction. The jurisdiction of the county court was wholly dependent upon the regularity of the proceeding and the acquiring jurisdiction by the justice of the peace. The transcript sent up established the want of jurisdiction. The affidavit of counsel, stating that the papers substituted were correct copies of the originals, precludes any presumption of the regularity of the originals. If this were not so, no presumptions could be indulged in in regard to these statutory proceedings, where the facts establishing the jurisdiction must affirmatively appear upon the face of the records. Proceedings in attachment and by garnishment are purely statutory, in derogation of the common law, and in the nature of proceedings in rem; and the statute must be literally and specifically followed, and departure vitiates the proceeding, and renders it void. These propositions are so elementary that authorities hardly need be cited in their support, but see Drake, Attachm. §§ 451b, 452; 1 Wade, Attachm. § 121; Wap. Attachm. 139; Edler v. Hasche, 67 Wis. 653, 31 N. W. 57; Harvesting Mach. Co. v. James, 84 Wis. 600, 54 N. W. 1088; Ettlesohn v. Insurance Co., 64 Mich. 331, 31 N. W. 201. In the last case it is said: "If a creditor seeks to collect his debt under this statute, the reasons are abundant and manifest why he should pursue the statute strictly, and under the most strict construction. The proceeding is founded upon the affidavit required by the statute. If this affidavit is defective, the court acquires no jurisdiction. It is not a case in which jurisdiction can be acquired by voluntary appearance of the parties, or aided by presumptions. Neither can any substantial requirement of the statute be waived in any of the proceedings by the debtor garnished, because others have an interest in the result quite equal with those of the parties to the suit." The county court could acquire no jurisdiction upon appeal when the inferior court was without jurisdiction; and when the transcript of the lower court shows its lack of jurisdiction the appellate court had none for any purpose whatever, and, although the appearance of the defendant in the county court may have conferred jurisdiction to try the question of indebtedness, it was ineffectual to confer jurisdiction in the attachment and garnishee proceedings. The judg ment will be reversed, and cause remanded. Reversed.

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.

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

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, der 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 traversed 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

un

was an attempted justification. "When the property belongs to a third party, the plaintiff cannot recover. Anything going to show that the plaintiff had no right to the. possession when he commenced his suit, is a complete bar to the action." Id. § 785; Clark v. West, supra; Belden v. Laing, supra; Delaney v. Canning, 52 Wis. 266, 8 N. W. 897; Holderman v. Manier, 104 Ind. 118, 3 N. E. 811. The court properly found that the alleged judgment and writ of execution under which the defendant attempted to justify were void. To avail as justification under plea of legal process, the writ must be valid and legal. Griffith v. Smith, 22 Wis. 646; Gist v. Cole, 2 Nott & McC. 456; Dayton v. Fry, 29 Ill. 525.

It is contended upon the part of appellant that the supposed confession of judgment by Gordon for the firm without any authority from the partner was void. This contention is abundantly sustained by authority. Black, Judgm. § 57; Bitzer v. Shunk, 1 Watts & S. 340; York Bank's Appeal, 36 Pa. St. 458; Soper v. Fry, 37 Mich. 236; Hopper v. Lucas, 86 Ind. 43. "In a pending action against two defendants one of them cannot, in the absence of the other, confess judgment against both; and a judgment rendered against both on the confession of one only, without evidence, will be set aside." Black, Judgm. § 58; Wiggins v. Klienhans, 9 N. J. Law, 249; Ballinger v. Sherron, 14 N. J. Law, 144.

Counsel for appellee contends that the presumption of regularity, and the presumed authority of the party appearing to represent his partner, must prevail. The answer to this is very brief. No presumptions

arise dehors a record; its legality must appear upon its face. The statement of record is that Gordon, one of the defendants, and a member of the firm of Gordon & Chindgren, "and the defendants in this action, per George W. Gordon, filed their confession of judgment," etc. It appears upon the face of the record that the court was without jurisdiction as to Chindgren, and the judgment against the firm void. Aside from this, there is another and fundamental reason why the judgment should have been held void, as shown by the record. No suit had been instituted nor pending. The voluntary appearance of Gordon and attempted confession were the inception of the proceeding. No claim or demand by complaint or otherwise had been made by the plaintiff. The Civil Code provides how suit shall be instituted and when pending. There is no provision whereby a party can institute a suit against himself, and confess a judgment for whatever amount he may see fit. Although, in this instance, the proceeding may have been honest, and the amount capable of proof, such practice opens too wide the door for fraud and collusion, and cannot be held valid as against other creditors.

It is urged that the validity of the judgment and writ could not be attacked collat

erally. The attack was not collateral. Defendant attempted to justify under a judgment and writ. His defense was affirmative. Upon him rested the burden of showing a valid judgment. For this purpose he put in evidence a record showing upon its face its want of validity. For the guidance of the court upon another trial, we will say that, no valid judgment having been obtained by the Keokuk Stove Company at the time of the alleged transaction, the goods at the time of seizure were either those of Gordon & Chindgren or the plaintiff. At the time of the alleged transfer to the plaintiff, so far as appears from the record, Gordon & Chindgren had a legal right to transfer and set over the goods to the plaintiff in payment of a bona fide indebtedness; and, if they had done so, and the goods had been delivered to, and the possession retained by, the plaintiff, its title was valid, regardless of the question of absolute or conditional sale by it to Gordon & Chindgren in the first instance. If the plaintiff relies upon a conditional sale of the goods, and a resumption of the possession, such facts must be legally established. Condition

al sales, without notice to other creditors of the fact or conditions, are not favored by the courts. Like other secret trusts, they are regarded as furnishing too great facilities for fraud. As to how they are regarded in this state, see a very late, able, and elaborate opinion by the supreme court in Jones v. Clark, 38 Pac. 371, and Harper v. People, 2 Colo. App. 177, 29 Pac. 1040. But in the case under discussion, no other creditor having legally intervened to assert rights against the property, the question of the character of the sale or the title to the property could only arise between the plaintiff and Gordon & Chindgren; and, the latter offering no contention, but acquiescing in the title of the plaintiff, it seems immaterial whether the plaintiff at all times remained the owner and regained the possession, or, by the act of Gordon & Chindgren, became the owner in the payment of the debt. Either, if legally established, so as to show the title and possession of the plaintiff invaded by the act of taking, would be sufficient, as against a trespasser or wrongdoer, to maintain the action. The judgment will be reversed, and cause remanded for a new trial in acordance with this opinion. Reversed.

(6 Colo. App. 66)

BEENEY, County Treasurer, v. IRWIN. (Court of Appeals of Colorado. March 11, 1895.)

MANDAMUS TO COUNTY TREASURER-COUNTIESALLOWANCE OF CLAIMS.

1. Mandamus will lie against a county treasurer to enforce payment of warrants drawn by order of the county commissioners upon an existing and sufficient fund.

2. A county treasurer has no power to pass upon the legality of claims allowed by the board of county commissioners.

went off on another ground, and the majority of the court held that, although mandamus was, under some circumstances, a proper remedy, yet, under the facts in that case, and the proceedings which had been taken, the matter was not open for adjudication. In the dissenting opinion which I filed in that matter I indulged in quite an extended discussion of the right to this remedy, and of the circumstances under which it was both available and exclusive. On pages 390, 391, and 392, 1 Colo. App., and page 287, 29 Pac., this discussion can be found, with the authorities which were relied on to confirm the position. There was no disagreement among the members of the court as to the law on this particular proposition, but we simply differed as to the necessity of its application. I may, without impropriety, refer to this discussion, in order to illustrate and emphasize the brief statement now made. In the absence of a statute directly authorizing an action at law against the county to recover the sum due on a county order, it is generally true that mandamus is the appropriate remedy. All the circumstances necessary to make this remedy a proper one concur in the present case. There was a specific legal right to a certain amount of money, evidenced by an order issued by the county government. The board which directed it to issue had authority to pass on the creditor's claim, and a right to draw a warrant on the treasurer. The order was

drawn on a definite fund. In order to entitle the creditor to his money, he must show that there was a fund in the treasury at the time of the presentation of his order properly applicable to the payment of this claim. He could not maintain an action against the county, and recover a general judgment, which is the only thing which can be entered in a civil action for money, for in such event the judgment would be payable otherwise than according to the terms of the order. It would manifestly be impossible, in that sort of an action, to enter a judgment directing the treasurer to pay the plaintiff a particular sum of money out of a specific fund. It is thus clear that Irwin had a right to file his petition for a writ of mandamus. If, on the hearing, the court should find there was money in the printing fund sufficient to pay his warrant, and Irwin was entitled to payment under the order of registration, it could direct the treasurer to pay him.

Vide authorities, 1 Colo. App. 392, 29 Pac. 287. We therefore conclude Irwin was entitled to maintain his petition for a mandamus, unless the treasurer's defense was effectual to bar the remedy. This we cannot concede.

It is insisted on the part of the county treasurer that it is his privilege and prerogative to determine the legality of the action of the board of commissioners where they have audited and allowed a claim and made an order on him which directs him to pay

the amount of money named in the order. It is difficult to exactly apprehend the basis for this contention. No statute is cited which gives to the county treasurer this supervisory power over the governing body of the county. An authority is cited from California, which seems to hold that, where a board of county commissioners has issued a warrant without legal right, the treasurer may refuse to pay it. A general expression of this sort is found in Connor v. Morris, 23 Cal. 447. The decision was put on the precise ground that it was evident from the record the board was absolutely without jurisdiction to issue the particular order on which the proceeding was based. This opinion must be read, however, in conjunction with two earlier cases by the same court: El Dorado Co. v. Elstner, 18 Cal. 144; Keller v. Hyde, 20 Cal. 594. These clearly decided that wherever the board had authority to act in the premises, or wherever the board of county commissioners had the right to issue the order for any part of the audited claim, the treasurer may not undertake to determine the legality or the illegality of the order, but must pay it on presentation, if otherwise the situation of the funds permit it. We cannot infer an intention to overrule the earlier cases, for by a reference to the Keller Case it is expressly approved. In turn that case is based on the other. It follows that the three must be examined to learn the rule accepted by the court. To us it clearly seems to be what has been stated. We should, in any event, be inclined to doubt the proposition stated in the Connor Case. We need not directly disagree with that authority, because the present controversy lacks the principal feature which entirely determined that decision. According to the present record, Irwin had done printing for the county, and had furnished stationery of the description which the treasurer conceded the board could contract about without the right on his part to question the legality of their proceedings. The treasurer simply insists, as to the part of the warrant which included the printing of the tax list, the board had no jurisdiction to contract, audit, or allow the claim, and consequently he was at liberty to decide how much of the warrant he should pay and how much he could withhold. We do not believe, under the circumstances, he had any such prerogative. The statute which defines his duties and grants powers to boards of county commissioners permits of no such construction. As we said in Commissioners v. Lee, 3 Colo. App. 177, 32 Pac. 841: "Under the statutory plan which divides the state into counties, and regulates the government of those territorial subdivisions, all power to fix, control, determine, or in any manner dispose of the funds of a county is devolved on the board of county commissioners. They alone have the right to disburse the public moneys, and to decide in what cases, and under what cir