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(230 P.)

and the counterclaims of defendants, and alleged that the bonding company was about each of them.

Reversed and remanded.

to effect a compromise with the city of Sterling, admitting a liability on the bond because of the city's claims against the

TELLER, C. J., and SHEAFOR, J., con- plaintiffs, and, that if such liability were ad

cur.

mitted, the bonding company expected to reimburse itself by a foreclosure of said mortgage. The plaintiffs had a temporary injunction against the compromise. The complaint prayed, among other things, that the

ALLEN et al. v. CITY OF STERLING et al. indemnity mortgage be canceled, it being al

(No. 10763.)

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Department 3.

leged that the plaintiffs were not indebted to the city of Sterling in any sum whatever.

A motion for change of venue having been filed, with affidavits in support thereof, the trial court reserved ruling on the motion, and required the city of Sterling to answer, but without waiving its right to claim a change of venue to Logan county. Thereafter an answer and cross-complaint were filed by the city, and some six weeks later an order was entered, changing the venue to Logan county and permitting the city of Sterling to withdraw its answer and crosscomplaint. The plaintiffs declined to answer in Logan county, and bring the cause

Error to District Court, Logan County; here on the question of the change of venue. L. C. Stephenson, Judge.

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The bonding company joined with plaintiffs in opposing the change of venue, but appeared in the suit in Logan county, and by answer prayed that the indemnity mortgage be declared valid. Judgment was entered against the Fidelity & Deposit Company for $28,811, and the mortgage was held valid.

The sole question necessary to be determined is that of jurisdiction arising out of the order for change of venue. Section 25 of the Code of Civil Procedure requires that actions for the determination of any "right or interest" in real estate shall be tried in the county in which the real estate is situated. This action involved, and the judgment determined, the question of lien of a mortgage on real estate in the city and county of Denver. The judgment specifically declares that the mortgage constitutes a first That an lien on the property mortgaged.

TELLER, C. J. Plaintiffs in error were contractors with the defendant in error, the city of Sterling, for work on the construction of a system of waterworks. The defendant in error, the Fidelity & Deposit Company, was surety on a bond given by the contractors to the city of Sterling to secure the proper performance of the contract. Plain-interest in the property was involved cannot tiff in error Allen had given to the Deposit be questioned. Company a mortgage upon property in the city of Denver to indemnify the Deposit Company against loss under said bond. The plaintiffs in error were plaintiffs below, and will be so designated herein.

The complaint alleged that the city of Sterling was making a claim against the plaintiffs for a large sum of money alleged to be due it under the contract. It further

That being so, the cause comes squarely within the statute, and it is triable in the city and county of Denver.

We cannot agree with the trial court that the fact that the ultimate responsibility of the contractors was a question to be determined in Logan county justified the change. The judgment is reversed.

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 230 P.-8

INDUSTRIAL COMMISSION OF COLORA-
DO et al. v. EMPLOYERS' MUT. INS.
CO. et al. (No. 10843.)

(Supreme Court of Colorado. July 7, 1924.
Rehearing Denied Nov. 10, 1924.)

aged between $4 and $5 per day. When he was not working, he assisted his wife in the work about the boarding house which he and his wife were then operating. In view of the fact that the claimant worked only part time at his work of a coal miner, and that the remainder of his time was spent in working for himself, the referee is of the opinion that claimant's average

Master and servant 385(1)-Finding of aver-earnings must be computed on the basis of his age weekly wage held erroneous.

Where claimant worked 68 days during six months and earned $222.86, finding that his average weekly wage was $20 was erroneous, and award of $10 was properly reduced to $5 per week, whether computation be under clauses (b) or (c) of C. L. § 4421.

Department 1.

Error to District Court, City and County of Denver; Julian H. Moore, Judge.

Proceeding by James M. Ratliff, under the Workmen's Compensation Act, to obtain compensation for personal injuries, opposed by the Rocky Mountain Fuel Company, the employer, and the Employers' Mutual Insurance Company, the insurance carrier. There was an award of compensation which was set aside by the district court, and the commission and applicant bring error. Affirmed. Matt J. Kochevar and Clifford H. Stone, both of Gunnison, Russell W. Fleming and Wayne C. Williams, Attys. Gen., and Joseph P. O'Connell, Asst. Atty. Gen., for plaintiffs in error.

Frank C. West, of Denver, for defendants in error.

daily earnings at the time of his accident. Computed on this basis, the claimant's average weekly wages exceeded $20."

The usual method of computing the average weekly wage is that prescribed in clause (b) of section 47 of the Act (section 4421, C. L. 1921), reading as follows:

"(b) The total amount earned by the injured or killed employé in the six months preceding the accident shall be computed, which sum shall be divided by twenty-six and the result thus ascertained shall be considered as the average weekly wage of said injured or deceased employé, for the purpose of computing the benefits provided by this act, except as hereinafter provided."

If this method had been followed by the commission, the average weekly wage would have been ascertained as between $8 and $9 per week, not $20, and the compensation awarded would have been $5 per week, as ordered by the district court.

The commission, of course, is not always required to proceed under clause (b), but may, under certain circumstances, proceed to compute the average weekly wage in accordance with clause (c) of the same section, “by taking the daily earnings at the time of the accident." This is what it did do in the instant case. It is contended that the commission was bound to proceed under clause (b), and that there was no ground for acting under clause (c).

ALLEN, J. This is a proceeding instituted before the Industrial Commission, under the Workmen's Compensation Act (Laws 1919, p. 700). The commission awarded the claimant, an employee, compensation at the rate of $10 per week. The district court, on appeal by the insurer and the employer, set It is not necessary to determine that quesaside this award and ordered the commission | tion. It is sufficient to say that there is to make an award of $5 per week. To review the judgment of the district court, the commission and the claimant bring the cause I here for review.

Under section 77 of the Act of 1919 (section 4451, C. L. 1921) the claimant is entitled to an award of "fifty per cent. of the average weekly wages." he had been receiving at the time of the accident. Section 4421, C. L. 1921, provides that the term "wages" shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire.

The findings of the commission, leading it, or supposed to lead it, to the conclusion that the average weekly wage of the claimant exceeded $20, so as to authorize an award of $10 per week, are as follows:

"Claimant worked at the coal mine of the employer during the six months preceding his injury, at such time as the mine operated. On the days that he worked, he aver

The

neither any finding nor any evidence to justify fixing the average weekly wage at $20 under either clause (b) or clause (c). commission did not find how many days each week he worked. Going to claimant's own testimony, we find that he worked as follows: May, 8 days; June, 7 days; July, 14 days; August, 21 days; October, 4 days. As to September, he did not remember, but the time card offered by the employer shows 14 days. In November he worked one day, but that month may be excluded, because he was injured on November 7, 1922.

Claimant worked 68 days during the six months preceding the accident. Neither side offered any evidence relating to earnings at any preceding time. 68 days during 6 months means that the claimant averaged not more During these 6 than 3 days per week. months his earnings totaled $222.86. Dividing this by 68 produces $3.27 as the average daily wage. Computed on the basis of

(230 P.)

"daily earnings," as authorized by clause (c), the average weekly wage is not over $10, nor one authorizing a greater award than compensation at $5 per week.

Whether the commission should have computed the average weekly wage under clause (b) or under clause (c), it could not, under the admitted facts, find that the average weekly wage was $20. Referring to a somewhat similar situation, the court, in Conrad v. Cummer-Diggins, 224 Mich. 414, 195 N. W. 53, said:

"We are not acquainted with any mathematical process by which the available facts can be made to produce any such result."

Garnishment in aid of attachment by the Great Western Finance Company against Millard B. Reece, with the Hamilton National Bank of Denver, garnishee. The judgment rendered was for plaintiff against defendant, but adverse to plaintiff as to garnishee, and plaintiff brings error. Reversed and remanded, with directions.

Otto Friedrichs, of Denver, for plaintiff in

error.

Bardwell, Hecox, McComb & Strong, of Denver, for defendant in error.

CAMPBELL, J. February 20, 1923, the Great Western Finance Company brought an

The district court was right in setting action in a justice of the peace court against

aside the award.

The judgment is affirmed.

TELLER, C. J., and BURKE, J., concur.

GREAT WESTERN FINANCE CO. v. HAMILTON NAT. BANK OF DENVER. (No. 10908.)

(Supreme Court of Colorado. Oct. 6, 1924.) 1. Garnishment 38-Negotiable instruments held subject to garnishment.

Under C. L. §§ 6091, 6094, 6102-6104, 6117, 6121, 6126, 6129, 6133, 6136, 6137, promissory notes, bank checks, and bills of exchange, which are complete obligations in themselves, are subject to garnishment as well as the debts thereby represented.

2. Garnishment 38-That defendant's check held by bank when served with garnishment process was unindorsed by defendant, held not to justify refusal to deliver it to constable.

That a check drawn on garnishee bank, payable to defendant and in possession of garnishee, when it was served with garnishment process, was unindorsed by defendant, did not justify bank's refusal to deliver check to constable, pursuant to C. L. § 6104, since fact of unindorsement was no concern of garnishee. 3. Garnishment 112-Garnishee bank held liable to plaintiff for amount of check in its possession, belonging to defendant, and which it refused to deliver to constable.

Where bank held check belonging to defendant which, but for service on it of garnishment summons, it would have been its duty to deliver to defendant on his demand, and refused to deliver check to constable, and thereafter made delivery of check impossible by reason of sending it to defendant who negotiated it to innocent indorsee, bank was liable, under C. L. §§ 6104, 6137, for amount of check, to plaintiff where he obtained judgment against defendant.

Department 3.

Millard B. Reece on a money demand, and on the same day an attachment and a garnishee summons in aid of the attachment were sued out, and service thereof had upon the Hamilton National Bank as garnishee, which answered that it was not indebted to the defendant, Reece, and did not have in its possession any property, effects, goods, chattels, .rights, credits, or choses in action belonging to the defendant, or in which he was interested. The garnishee's answer was traversed. Judgment went for the plaintiff against the defendant in the sum of $210, and the findings of the justice were in favor of the garnishee, and it was discharged. Upon an appeal to the county court by the plaintiff from the judgment discharging the garnishee, there were two trials; the first one resulting in a judgment for the plaintiff and against the garnishee, the second trial for the garnishee, and it was discharged. The

plaintiff is here with its writ of error to review that judgment.

The material facts are that the defendant, Reece, before this action was instituted, had taken out an insurance policy upon his life, and had paid as a premium therefor the sum of $95. The insurance company canceled the policy and notified Reece thereof, and that it was sending to the Hamilton National Bank of Denver its check for $95, being a return of the premium, which the bank as the agent of the insurance company would deliver to Reece upon his delivery of the insurance policy and a receipt, apparently of the returned premium money. In accordance with the notification to Reece he delivered to the bank the insurance policy and the receipt, and the check in question, drawn upon this bank, was left unindorsed by the ownThe check was in possession of the bank at er and holder thereof, with that institution. the time the garnishment process was served upon it, and there was money in the bank to the credit of the drawer of the check, the insurance company, to pay the check which the drawee was holding and did hold for that purpose. Our garnishment statute (sec

Error to County Court, City and County tion 6104, C. L. 1921) provides that, when of Denver; George W. Dunn, Judge.

the garnishee summons in aid of an attach

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ment is served upon the garnishee, he may, 6103 things in action belonging to the dedeliver to the constable all moneys which he fendant, whether or not susceptible of manhas due to the defendant, and personal prop-ual seizure, may be attached by leaving with erty and choses in action belonging to the defendant in his possession or under his control, and, if such delivery is not made, the person so garnished shall be liable to the plaintiff for the amount of the debts or things in action for which he would otherwise be liable to the defendant, until the attachment is dissolved or the judgment recovered in the action is fully satisfied. The garnishee refused to deliver to the constable this check, although it belonged to the defendant and there was money in the account of the drawer in the bank sufficient to pay it. Instead of making the delivery to the constable, the bank sent this check to the defendant, who then was living in the state of Wyoming, and the latter deposited it with a Wyoming bank and received the sum of $95 thereon, and the check in due course was returned to the Hamilton National Bank, and the latter gave credit therefor to the Wyoming bank and charged it to the account of the drawer.

The first question for decision is whether in any case a check drawn on a bank is garnishable, and, if so, whether, under the facts, the check in question was garnishable, and what is the liability of the garnishee for failure to deliver it when demand therefor is made by the constable at the time of the service of the writ? At the common law choses in action, like promissory notes and bills of exchange, were not subject to garnishment. If they are in this state, it is because some statute so provides. Authorities have been cited by the garnishee from Massachusetts, Pennsylvania, and other states that such instruments are not within the purview of their garnishment or attachment statutes. As to these cases we say that an examination of the statutes under which such decisions were rendered shows they are essentially unlike our attachment and garnishment statute.

There are two kinds of garnishment in this state; one in aid of an attachment before judgment; the other in aid of an execution after judgment. When service of the garnishee summons or notice is had, under either method, the procedure thereafter is practically the same in both cases. The garnishee cites section 6102, C. L. 1921, which describes what property is subject to attachment and garnishment, as not including things in action; the property so described being "all debts" due to the defendant from any person. Sections 6091 and 6094 are also cited, in neither of which are choses or things in action specifically mentioned, and from this garnishee draws the conclusion that negotiable instruments, which are things in action, are not subject to garnishment. In these particular sections things

the person in whose possession they are a copy of the attachment writ and garnishee summons. Section 6104, which authorizes the garnishee to deliver to the constable the property belonging to the defendant and in the garnishee's possession, enumerates choses in action. Section 6117, which provides for the issuance of the summons to the garnishee, if he does not deliver the garnished property, mentions choses in action. The form of the answer which the garnishee is required to make, as provided by section 6121, also includes things in action of which the garnishee has possession. Section 6126 allows a third person, who claims any choses in action garnished, to intervene and maintain his right thereto. By section 6129 no person is liable as a garnishee by reason of having drawn, etc., any negotiable instrument, when the same is not due, in the hands of the defendant at the time of the service of the garnishee summons, thereby indicating that he is liable if the instrument is then due. Section 6133 provides that when any garnishee has any choses in action, or effects other than money, belonging to the defendant, he may deliver the same, or so much thereof as may be necessary, to the officer who holds the execution in favor of the plaintiff in the attachment suit or judgment, and the officer may sell such things in action under execution the same as other goods and chattels. Section 6136, relating to the disposition of property delivered to the officer by one who is attached or garnished, specifically includes choses in action.

[1] Section 6137 provides that when a garnishee refuses to deliver "choses in action" or other property in his possession, if the proceedings be before a justice of the peace, judgment may go against him in plaintiff's favor for the full amount of the judgment and costs against the defendant. So that, even though the particular section or sections of our statutes cited by the garnishee which describe what property may be attached or garnished in general terms, may not specifically enumerate negotiable instruments or choses in action, the entire act, some sections of which we have above referred to, discloses that it was plainly the intent of our General Assembly to make negotiable instruments subject to attachment and garnishment, and that such instruments, which may be delivered to the constable if the plaintiff recovers judgment, may be sold under execution and title thereto vested in the purchaser. These various sections just considered by us amount to a construction by the legislative body itself that choses in action are garnishable. They also make these instruments themselves, which evidence debts, property, or a species of property.

(230 P.)

been expressly decided by this court, but in, liver them to the constable becomes liable Citizens' Bank v. First National Bank, 66 for the amount of the note or check to the Colo. 426, 182 P. 12, 5 A. L. R. 587, in an attaching creditor, if he recovers judgment, opinion by Mr. Justice Denison, it was as- in all cases where, in the absence of the garsumed that negotiable instruments are gar- nishment, his duty would be to deliver over nishable. In that case, however, it was held the note or other article of property to the that the weight of authority is that the lia- defendant. In 28 C. J. the author says, at bility upon a negotiable instrument before section 201, p. 160, that whether the general maturity is not garnishable, which neces- terms used by garnishment statutes in definsarily implies that after maturity it is so. ing property subject thereto, such as propThat decision, strangely enough, is cited by erty, goods, rights, credits, etc., embrace evithe garnishee as holding negotiable instru- dences of debt or obligation in the hands of ments not subject to garnishment. Instead a person other than the debtor, is purely a of being in favor of the garnishee, it is in matter of statutory construction. Standing favor of the plaintiff, so far as the question alone, the author says, these terms generally now before us is concerned. The question include only properties, rights, and obligabefore the court there was as to the lia- tions themselves, as distinguished from writbility of the garnishee upon the check it- ings or instruments whereby they may be self which was garnished, and, as it was not evidenced. The author further says, and we then due, no liability attached to the Glen- think in this he is correct, that a distinction wood bank, the drawee of the check, which exists between evidences of debt generally, previously had been accepted and properly and those which in themselves embody the certified. The check, though accepted, was complete obligation sought to be reached. not presented for payment until long after The latter kind, such as those usually termed the time of service of the garnishment no- "securities," like promissory notes, bills of tice upon the garnishee. The plaintiff here exchange, checks and bonds, and such other did not seek, by service of the garnishee sum- instruments in writing as embody in themmons upon the garnished bank, to impose any selves a complete obligation, are included in liability of the bank upon the check; nor the above general description. did plaintiff claim that the bank was then even liable for the amount of $95, for which amount the check on the garnishee was drawn; but sought and asked to have the check itself delivered to the constable to await determination of the action as between the plaintiff and the defendant. The bank, having refused to deliver the check to the constable, as it might lawfully do, which was its duty, and thus be relieved from further liability, elected to retain the check and thereafter wrongfully, as we say, sent the check to the drawee defendant, which enabled the latter to have it cashed in the state of Wyoming by an innocent indorsee, the Wyoming bank, which later collected the check from the garnishee bank in Denver. We think, therefore, that under section 6104 the garnishee is liable to the plaintiff for the amount of this thing in action, a check for $95 (which cannot now be delivered to him), because the garnishee, had not the process been served upon him, would otherwise have been required on demand to deliver it to the defendant.

We think, therefore, that promissory notes, bank checks, and bills of exchange, which are complete obligations in themselves, are subject to garnishment, as well as the debts themselves thereby represented. They are a species of property. It is no sufficient answer, which the garnishee makes, that no useful purpose could now be subserved, even if it were physically possible, by delivering this canceled and paid check to the plaintiff, or would have been served if the check itself, unindorsed by the drawee, had been delivered by the garnishee to the constable at the time of the service of process. That is no excuse for the garnishee's refusal to deliver this check in its then condition. It was no concern of the garnishee that the plaintiff might or might not be able to recover on the check without an indorsement by the drawee. If the check, as is conceded, was at the time the property of the defendant, it was the plain duty of the bank, under our statute, to deliver it to the constable when notified of the garnishment. might also be well decided that the exchange of the several writings of the parties, whereby the bank received and held the check owned by Reece, constituted in law a written acceptance of the check, and that the subsequent transmittal of the same to Reece for his indorsement was an acknowledgment or recognition by the bank of its prior acceptance.

It

[2] The garnishee says that under our statute in no case may a garnishee be held unless, at the time of service of the writ upon him, he was actually indebted to the defendant in money upon which the defendant might have maintained an action against him. That contention might be true if only debts which the garnishee owed to the defendant are subject to garnishment, but where stat- [3] As it is impossible now to deliver the utes are like ours that require the garnishee check, it having been paid by an innocent to deliver to the constable personal proper- indorsee in Wyoming, and the garnishee bank ty and choses in action. like checks, or bills not having it in its possession, the case clearof exchange, the garnishee who fails to de-ly comes within the provision of sections

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