« ΠροηγούμενηΣυνέχεια »
to satisfy the claims of its citizens. It is in the same line. The states holding the conin virtue of the state's jurisdiction over the trary doctrine seem to be Pennsylvania, Ohio, property of the nonresident situated within Iowa, Georgia, and North Carolina; while its limits that its tribunals can inquire in- Nebraska applies her own exemption laws to to that nonresident's obligations to its own protect the wages of a defendant having a citizens, and the inquiry can then be car- foreign domicile, and Michigan, Iowa, Wisried only to the extent necessary to control consin, and the United States circuit court the disposition of the property. If the non- for the Southern district of Iowa, by Judge resident have no property in the state, there Shiras, held that the statute of exemptions is nothing upon which the tribunals can ad- of the state where the contract was made judicate." In Cooper V. Reynolds, supra, and the labor performed was inherent in, Mr. Justice Miller said: “But if there is and followed the fund into, the foreign ju. no appearance of the defendant, and no sery- risdiction. See Mason v. Beebee, supra. ice of process on him, the case becomes in A great majority of the state courts sus. its essential nature a proceeding in rem, the tain the doctrine here contended for, and only effect of which is to subject the prop- they appear to me far more logical and founderty attached to the payment of the demand. ed in better reason than any contrary doc.
* * The court in such suit cannot pro- trine. One consideration alone should, in my ceed unless the officer finds some property judgment, be conclusive of the matter. If of defendant on which to levy the writ of the situs of a debt, by a chose in action, fol. attachment.” See Picquet v. Swan, 5 Ma- lows the creditor, the wages of a laboring son 35, Fed. Cas. No. 11,134; Boswell's Les- man earned and payable in a foreign state see v. Otis, 9 How. 336. If the debt of the have their situs with and at the domicile plaintiff and the choses in action followed of the creditor who has never appeared in or came with the owner into this state,-and the foreign jurisdiction, and the fund is enupon this all authorities agree.--then the titled to the protection of the laws of the debt of the garnishee to the defendant, as situs where earned and payable, and is not fast as monthly wages were earned, follow- property in the foreign state, through which, ed the person of defendant, and had its situs by attachment proceedings, jurisdiction of the at his domicile in Kansas, and could not, un- defendant could be obtained. This view of der any of the decisions, have been prop- the law, by compelling a creditor to reach the erty in this state. Tappan v. Bank, supra; fund, if at all, at its situs, gives the debtor Mason v. Beebee, supra. In Everett v. In- the protection of the local law, and his family surance Co., 4 Colo. App. 509, 36 Pac. 616, the benefit of all exemption laws intended for the same question, in connection with an- their protection. It in no way attempts to other, was presented and discussed ably and modify an existing contract between the garcarefully by Bissell, P. J., in which it was nishee and the laborer, or make a new one, said, at page 516, 4 Colo. App., and page compelling the performance of the contract in 616, 36 Pac.: “It is as impossible by judicial another and different state from that in construction, as by legislative enactment, which it was made. It has been held in the to declare that property out of the state, courts of several states that a judgment like having a domicile with the debtor or the the one under consideration, obtained in a for. creditor, is within the limits of the sover- eign jurisdiction, in the same manner as this, eignty, for the purposes of a levy." And even if paid and discharged by the garnishee, many authorities are cited to sustain the could not be pleaded and operate as a bar to position. Taking the states that have adju- a suit by the laborer for the collection of his dicated this question and sustain our posi- wages at the place of domicile of the par. tion, we find Massachusetts: Casey v. Da- ties where the contract was made and was to vis, 100 Mass. 124; Gold v. Railroad Co., be performed. The garnished corporations 1 Gray, 424; and running back through an were made to pay the same wages twice, unbroken line to Blake v. Jones, 7 Mass. 28; through no fault or negligence of their own. the leading case, perhaps, being Nye v.. Lis. See Railroad Co. v. Chumley, 92 Ala. 317, 9 combe, 21 Pick. 203. In Maine: Insurance South. 286; Green V. Bank, 25 Conn. 452; Co. v. Eaton, 35 Me. 391; Lovejoy v. Albee, Smith v. Railroad Co., 33 N. H. 337; Pierce 33 Me. 414. In New Hampshire: Several v. Railway Co., 36 Wis. 283; Renier y. Hurldecisions from Jones v. Winchester, 6 N. H. but, 81 Wis. 24, 50 N. W. 783; Railroad Co. F. 497, to Lawrence v. Smith, 45 N. H. 533; the Baker, 122 Ind. 433, 24 N. E. 83; Railway Co. leading case being Sawyer v. Thompson, v. Sharitt, 43 Kan. 380, 23 Pac. 430; Stark v. 24 N. H. 510. In New York there are nu- Bare, 39 Kan. 100, 17 Pac. 826; McCarty v. merous decisions, notably Willet v. Insur- The City of New Bedford, 4 Fed. $18; Cole v. ance Co., 10 Abb. Pr. 193; Douglas v. In- Cunningham, 133 U. S. 107, 10 Sup. (t. 219. surance Co., 63 Hun, 393, 18 N. Y. Supp. I think I have shown myself justitied by the 239; Osgood v. Maguire, 61 N. Y. 524; Wil- law in holding that the claim was not propliams v. Ingersoll, 89 N. Y. 523. See, also, erty in this state in contemplation of law, and Green v. Bank, 25 Conn. 452; Baylies v. that the court, through the attachment and Houghton, 15 Vt. 626; Peck v. Barnum, 24 attempted garnishment proceedings, obtained Vt. 75. Missouri, Nebraska. Kansas, Michi- no jurisdiction whatever; and I think it far gan, Illinois, Alabama, and Mississippi are all better to place the decision on this broad and
general ground than reaching practically the
(6 Colo. App. 72) same result by importing the exemption laws CITY OF DENVER v. BARRON. of the state where the contract was made,
(Court of Appeals of Colorado. March 11, giving them extraterritorial effect and opera
1895.) tion, making them, as said, inherent in and
INJURY FROM DEFECTIVE STREET-NOTICE TO CITY attached, like the tail of a kite, to the con
-SPECIAL LEGISLATiOx. tract, and following it wherever it goes, thus 1. A notice which states that an injury ocgiving a local remedial statute general appli- curred at a point where a line of sewer crossed
Thirty-Fourth avenue, between F. and H. cation and effect coextensive with the United
streets,” sufficiently states the place of the inStates. The judgment of the district court jury to satisfy a charter provision that, before will be reversed, the cause remanded, with in. suit for an injury, notice must be served on the structions to dismiss the proceedings and dis
city stating the place where the injury occurred.
2. A notice which states that an injury was charge the garnishee. Reversed.
caused by the ground giving, way beneath a horse, so that he sank several feet, meets the requirements of a city charter that notice of
how the injury occurred be served on the city, (6 Colo. App. 43)
though in fact the injury resulted from the BOARD OF COM’RS OF MESA COUNTY horse stepping into an existing hole in the street. et al. y. BROWN et al.
3. Under a charter provision that to entitle
one to an action for an injury resulting from (Court of Appeals of Colorado. March 11, a defective street, notice of how the injury oc1895.)
curred must be served on the city, plaintiff can
not show that she suffered a miscarriage beGARNISHMENT OF COUNTY BOARD.
cause of the injury, without stating that fact A board of county commissioners is not
in the notice.
4. Where a city could, under its charter, sue subject to garnishment.
and be sued, an amendment of the charter so as Appeal from district court, Mesa county.
to require written notice to the city of how
and where an injury occurred before suit for Action by Brown Bros. against Quinn and
the injury is germane to the subject of the Core (the board of county commissioners of charter, and hence does not infringe Const. art. Mesa county, garnishees). From a judgment 5, $ 25, prohibiting special legislation. against them as garnishees, the board of Appeal from district court, Arapahoe councounty commissioners and others appeal. ty. Reversed.
Action by Lulie Barron against the city of
Denver. Charles F. Caswell and Henry W. Ross,
From a judgment for plaintiff, defor appellants. Sullivan & Wheeler, for ap
fendant appeals. Reversed. pellees.
Mrs. Barron, the appellee, got hurt on Thirty-Fourth avenue, in the city of Denver, on
the 1st of March, 1892. It appears from the THOMSON, J. This is an appeal by the
proof that prior to that time a sewer had board of commissioners of Mesa county from
been laid along the alley between Franklin a judgment rendered against it as garnishees. and Humboldt streets where they cross ThirThe appellees recovered a judgment against
ty-Fourth avenue, and had been continued in Quinn and Core, upon which execution was its course probably across the avenue. On issued. Their execution being unsatisfied,
the evening of the day in question, and a litthey caused a summons in garnishment to tle after dark, or thereabouts, Mrs. Barron, be issued and served upon the appellants. with her two children, was driving along the The interrogatories attached to the summons avenue towards home. When she got to the were answered by Edwin Shaw, who stated point where the sewer crossed the avenue, the that he had in his possession, as clerk of the horse suddenly plunged into a hole, or the appellants, a warrant drawn on the county dirt gave way with him, and in his fright treasurer's commission and fee fund, paya- and struggles to get out of the difficulty Mrs. ble to W. J. Quinn or bearer, for $630.57, Barron was thown over the dashboard, which the value of which he did not know. He broke under her weight. Her back struck afterwards filed supplemental answer. the wheel, whereby she was very much frightThere was no appearance in the case by the ened, and quite severely hurt. The horse appellants. Judgment was given against started to run, but evidently was not very the appellants, as garnishees, for the amount violent in his efforts, because he was soon of appellees' claim, and the board appealed. caught by the motorman of a passing car, There are several reasons apparent upon the and the horse and phaeton were put in charge face of the record why this judgment should of a passer-by, and sent home. Mrs. Barbe reversed, but there is one which effectual- ron was able to be up for a day or so, when ly and finally disposes of the entire contro- she was compelled to take to her bed, and versy, and that is that in this state, as the was under the care of a physician for some law now stands, counties are not subject to days. All of her injuries were not very cleargarnishment. Stermer v. Board (Colo. App.) ly defined, though one of her principal con38 Pac. 839. The judgment will be reversed tentions which the evidence tended to supand remanded, with directions to the court port was that she was enceinte, and within below to dismiss the garnishment proceeding. three or four days of the time had a miscarReversed.
i riage. These facts were proven on the trial,
over the objection of the counsel for the city. verse order, we will first consider the alleged To protect her rights in the premises as re- unconstitutionality of the act of the legislaquired by the charter, she served a notice on ture. Our discussion will consist of nothing the mayor in the following language: "You but the simple suggestion of the matters on will please take notice that on Tuesday, the which we rest our opinion. If the question 1st day of March, A. D. 1892, Mrs. Lulie Bar- be in any wise involved in the litigation, the ron, the wife of W. W. Barron, residing at appellee can procure a review of our judg. 3444 Gilpin street, in the city of Denver, was ment by taking her case to the supreme court, severely injured by reason of a defect in Thir- which is the final arbiter of all constitutional ty-Fourth avenue at the point where the sew- questions. There would seem to be no room er recently laid by the city crossed said ave for discussion. Section 25 of article 5 of our nue, between Franklin and Humboldt streets, constitution, which is said to be infringed by the said injury having occurred in the follow- that provision of the charter of Denver reing manner, so far as we have been able to garding notices, has been frequently conascertain: Mrs. Barron was driving along strued by the supreme court, and every ques. said avenue with a horse and phaeton, when, tion and argument suggested by counsel seem directly over the place where the sewer had to be wholly disposed of by those decisions. been laid, the ground gave way beneath the It is a fact familiar to all lawyers in the horse, and he sank in several feet. He plun- state that the original charter which incorged out, and started to run, and the phaeton, porated the inhabitants of Denver was passed by reason of the sinking and the plunging of by the territorial legislature of 1861. The the horse, was nearly upset, and Mrs. Barron present charter is but the crystalized form thrown over the dashboard and against the which it has assumed under the various en. front wheel. She clung to the lines, and the actments of subsequent legislatures. The first horse was stopped within half a block. Her charter in terms provided that the inhabtwo children were in the phaeton, but, aside itants should be an incorporation which from a severe fright, were uninjured. Mrs. might sue and be sued and plead and be im. Barron was severely injured internally, was in pleaded in all courts of law and equity. That bed for a period of ten days, and is now in original provision remained in all the charthe care of a physician, and will probably ters down to the last, and is in substance never entirely recover from the effects of her found therein. The appellee insists, under fright and injury. The city had notice and the authority of City of Denver v. Dunsmore, ample knowledge of the defective and wretch- | 7 Colo. 328, 3 Pac. 705, that the right to sue ed condition in which the ground over the the city was a part of the common law of sewer had been left in that locality, and took this jurisdiction, and was not derived from no steps to remedy it. Mrs. Barron proposes the permissive legislation which chartered to hold the city responsible for whatever dam- the city. This question was not set at rest ages she has sustained by reason of the above by that opinion. What that court decided injuries.” During the progress of the trial, was tbat, by virtue of the principles of the objection was made to the introduction of common law, which were a part of the law much of the testimony on the ground of the of the state, a municipality would be respon. insufficiency of this notice. The charter pro- sible for its torts committed in the negligent vision is found in section 4, art. 13, and is: performance of its duty in caring for the “Before the city of Denver shall be liable for streets. Although the case undoubtedly held damages to any person injured upon any of that a city would be liable for negligence in the streets, avenues, alleys or sidewalks of the exercise of its powers over the highways, the city, the person so injured, or some one the court did not undertake to decide, nor do in his behalf, shall give the mayor or city we, whether legislation providing a remedy council notice in writing of such injury with- was necessary to entitle an injured party to in thirty (30) days after the same have been secure redress for such injuries. It was received, stating in such notice when, where wholly unimportant, because the very act of and how the injury occurred and the extent inc ration provided that the city might thereof."
both sue and be sued. The court assumed,
as we do, that the only question for considA. B. Seaman and Louis K. Pratt, for ap
eration was whether specific legislation was pellant. Thomas, Bryant & Lee (W. P. Hill
necessary to make the city liable for such house, of counsel), for appellee.
torts. It is conceded that the charter pro
vision requiring notice was added to the BISSELL, P. J. (after stating the facts). organic law of the municipality by an The arguments and the record suggest but amendment passed long after the grant of two matters to be determined. The first re- the original charter, which preceded the lates to the contents of the notice which was adoption of the constitution. It has been served on the mayor, and the second springs held that the constitution did not affect from the contention that there is no necessity prior legislation, and of course such a defor a notice at all, because of the unconstitu- cision eliminates every question except the tionality of the legislation which provides for naked one whether this particular amendit. Disposing of these matters in their in- ment was germane to the general purposes of
the enactment, and whether such an amendment could be made without infracting that particular section of the article. As we said at the outset, we are thoroughly satisfied the matter has been settled by the supreme court; and under its decisions such an amendment must be taken to be both legitimate and proper, and no infringement of that article. Brown v. City of Denver, 7 Colo. 305, 3 Pac. 455; Carpenter v. People, 8 Colo. 116, 5 Pac. 828; Rogers v. People, 9 Colo. 450, 12 Pac. 843; People v. Londoner, 13 Colo. 303, 22 Pac. 764; In re Extension of Boundaries of City of Denver, 18 Colo. 288, 32 Pac. 615.
The act being assumed to be constitutional, the only question left concerns the sufficiency of the notice. That the notice is an indispensable prerequisite to the maintenance of the suit was recently decided in this court at the present term in the case of City of Denver v. Saulcey, 38 Pac. 1098. The precise matters suggested by the present record were not within the purview of that decision. As will be remembered, the act provides that the notice which is served must state when, where, and how the injury occurred, and the extent of it. In passing upon the question of the sufficiency.of the notice it may be well to premise that the question of the sufficiency of the notice is one of law, and to be solely determined by the court. Chapman v. Inhabitants of Nobleboro, 76 Me. 427; Rogers v. Inhabitants of Shirley, 74 Me. 144. Under this rule we must ascertain whether the paper which was served on the mayor conformed to the requirements of the charter. The locus of the injury seems to us to be sufficiently described. There are cases, perhaps, which go to an extreme length in requiring an exact designation of the spot at which the injury was received, but we are referred to none which compel us to hold the notice deficient in this particular. Larkin v. Boston, 128 Mass. 521; Weber v. Town of Greenfield, 74 Wis. 234, 42 N. W. 101; Fopper v. Town of Wheatland, 59 Wis. 623, 18 N. W. 514. The date was accurately given, and the only possible point of attack respects the way in which the injury was received, and its extent. There are a good many cases which hold the plaintiff to a very great accuracy in stating how he was hurt. McDougall v. City of Boston, 134 Mass. 149; Dickie v. Railroad Co., 131 Mass. 516; Noopan v. City of Lawrence, 130 Mass. 161; White v. Town of Stowe, 54 Vt. 510; Wieting v. Town of Millston, 77 Wis. 523, 46 N. W. 879. We do not believe that we depart from the spirit and principle evidently underlying these decisions when we hold this notice sufficient in that respect. The location was very definitely stated. It was given as the line of the sewer crossing Thirty-Fourth street at the alley between Franklin and Humboldt. Manifestly it would have been impossible for the city authorities to have been misled by this description. The only thing in the notice respecting the way in which the injury
happened which admits of discussion is the statement "that the earth sunk under the horse, which occasioned his fright, and the ultimate injury to Mrs. Barron.” The proof does not exactly correspond with this state. ment, although it may be literally true as it was put. Still, if literally true, it was not entirely true; in other words, it could not have been a statement of all the facts. The plaintiff's witnesses showed that for probably 24 hours prior to the action there had been at that point a hole in the street, resulting from the sinking of the earth in the trench where the sewer was laid. It was dark when Mrs. Barron got there. When her horse went into the hole, it is quite probable he commenced to sink, and that she, in her. fright, was left with the impression that the earth caved under him, and caused the accident. Possibly there are one or two cases cited which seem to decide, if the notice alleged that the injury occurred through the sinking in the ground, when in fact it came from a hole in it, it might bar the plaintiff's recovery. We think no case goes quite to this length. Those which more nearly approach the line are the ones in which there is no possible similitude between the actual occasion of the injury and the occasion as it is described in the notice served. In the present case, if the earth did cave, there was a hole; and if there was a hole, and the earth did cave, the depression would still be the occasion of the injury, whether it was made when the horse struck the locality, or whether the earth had previously sunk. The authorities were therefore advised that the inJury was occasioned by a hole in the street, no matter whether it had been there 24 hours or came at the very time that the horse struck the line of the sewer. For this reason we must hold the notice sufficient in this particular.
The remaining question is one of much greater difficulty, and on which the authorities are more entirely in accord in their requirements. All of the cases which have been called to our attention touching this question unite in deciding that the plaintiff must describe in the notice the extent of the injury which has been sustained. There is some little difference in the various statutes on the subject, but the variations in the phraseology do not, in our mind, necessitate any difference in the rule which must be applied. Wherever a party has been hurt, he must, so far as may be, give an accurate description of the injury which he has sustained. Many reasons are assigned for the rule, but in general they are that the city authorities may be advised of the precise claim which the plaintiff makes, and that there may be thereafter no opportunity to make another and a different case from what is insisted on when the injury is fresh, and the facts easy of ascertainment. Nourse v. Town of Victory, 51 Vt. 275; Perry v. Town of Putney, 52 Vt. 533; Pratt v. Town of
Sherburne, 53 Vt. 370. None of the deci- E. B. Watson and F. L. Keenan, for apsions require of the plaintiff impossibilities, pellant. Geo. H. Williams, for respondent. or the performance of difficult and unusual things. It is only insisted that with refer- WOLVERTON, J. This is an action to reence to plain injuries, and those which the cover 23% acres of land situate in Multnomah layman can easily locate, determine, and de- county, Or. The complaint contains the scribe, he must set them down in his notice. usual allegations. The answer, after a speInternal injuries, which he can neither diag- cific denial of the material allegations of the nose nor describe otherwise than by his sen- complaint, sets forth four further and sepasations, would probably be sufficiently stated rate defenses thereto, in the first of which il if the sensations were given. In case of a is alleged that the title in fee and right of broken bone, it would be enough to state that possession of the premises in dispute are in his leg, his arm, or his limb were fractured, the defendant. The fourth shows the fol. without stating the kind and description of lowing state of facts, to wit: On the 20th the fracture he had sustained; but wherever day of November, 1882, one Charles E. Til. the trouble is readily appreciable, and easily ton commenced an action in the United described, it must be stated in the notice, or States circuit court for the district of Oregon else there can be no recovery for that partic- against the plaintiff herein and Aurelia J. ular injury. The difficulty in the present case Barrell to recover the possession of certain comes from one matter, which was proved premises, including those in dispute. The as an element of the injury,—the miscarriage. defendants therein appeared and answered, Aside from this, we can discover no insuffi- denying the title of Tilton to said premises, ciency in the notice, but we are of the opin- and thereupon such proceedings were had ion that this matter should not have been that on the 9th day of July, 1883, it was permitted to go to the jury. The reason of duly considered and adjudged that Tilton was it is very plain. A married woman, who the owner in fee simple of said premises, was the mother of two children, must have and, as against the defendants therein, law. been well advised of the nature of her in- fully entitled to the possession thereof. The jury; and, if she sustained this particular defendants thereafter appealed to the suharm, the matter was well known to her preme court of the United States, and on long before her notice was served. It was July 16, 1883, gave a supersedeas bond for plain to her mind and to her apprehension, the prosecution of such appeal. At the Ocand it is as easy of description as the state- tober term of said court for 1886 the judgment that she had broken her arm or broken ment of the lower court was affirmed, and her leg. We therefore hold it was error for on March 28, 1887, a mandate issued, which the court to admit testimony on this subject was duly filed and entered of record in the under the notice. We do not discover any circuit court. Four executions were there other matter which requires discussion to set- after issued upon dates, respectively, Septle the present appeal, or to advise the lower tember 9, 1890, June 2, 1891, March 16, 1892, court with reference to the future trial. For and June 30, 1893. The three first were rethe error committed by the court in admit- turned not served, but the fourth was duly ting the testimony referred to, the judgment executed by the United States marshal by will be reversed, and the case remanded for a putting the defendant herein in possession of new trial. Reversed.
the property as Tilton's successor in interest, and the defendant has ever since remained
in possession thereof. The third simply sets (27 Or. 77)
up the Tilton judgment as an estoppel. The BARRELL V. TITLE GUARANTEE &
reply denies the defendant's ownership in TRUST CO.
fee and right of possession, but admits the
allegations of the fourth further and separate (Supreme Court of Oregon. March 12, 1895.)
defense, except that the execution of June RES JUDICATA - JUDGMENT FOR LAND — ADVERSE PossessION-INTERRUPTION BY Suit.
30, 1893, was duly issued or served, and al. 1. Under Ilill's Ann. Laws, $ 329, making
leges that the issuance and service thereof the judgment in an action for the possession of were wrongful, without authority of law, and real property conclusive of the estate in, and the an abuse of the process of said circuit court. right to the possession of, such property, upon the judgment defendant, and those claiming
And, further replying to each of the second, under him, after the commencement of the ac
third, and fourth separate defenses, avers tion, the judgment operates as a bar to a subse- that on the 3d day of July, 1893, and for quent action from the date of its recovery. more than 12 years next prior thereto, the
2. The time between the bringing of an action for land and the entry on the land by plain
plaintiff was in the open, actual, notorious, tiff, under a judgment rendered therein, cannot peaceable, and continuous possession, Ociube considered in computing the period of defend- pation, and enjoyment of all the premises ant's adverse possession.
described, claiming title thereto in fee simple, Appeal from circuit court, Multnomah adverse to defendant and its grantors and county; E. D. Shattuck, Judge.
the whole world, and by reason thereof had Action by Colburn Barrell against the Title acquired, and then held and owned, a perfect Guarantee & Trust Company. Judgment for title to said property in fee simple. I'pon defendant, and plaintiff appeals. Affirmed. this state of the pleadings, the defendant in