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(230 P.) and the counterclaims of defendants, and , alleged that the bonding company was about each of them.

to effect a compromise with the city of SterReversed and remanded.

ling, admitting a liability on the bond be

of the city's claims against the TELLER, C. J., and SHEAFOR, J., con- j plaintiffs, and, that if such liability were ad

mitted, the bonding company expected to
reimburse itself by a foreclosure of said
mortgage. The plaintiffs had a temporary in-

junction against the compromise. The comALLEN et al. v. CITY OF STERLING et al. indemnity mortgage be canceled, it being al

plaint prayed, among other things, that the (No. 10763.)

leged that the plaintiffs were not indebted to (Supreme Court of Colorado. July 7, 1924. the city of Sterling in any sum whatever. Rehearing Denied Nov. 10, 1924.)

A motion for change of venue having been Venue Om5(4)-Venue of suit to cancel mort- trial court reserved ruling on the motion,

filed, with affidavits in support thereof, the gage indemnifying surety against loss under contractor's bond stated.

and required the city of Sterling to answer, Suit to cancel real estate mortgage indem-) but without waiving its right to claim a nifying surety against loss on contractor's bond change of venue to Logan county. Thereinvolves interest in realty, and hence is triable, after an answer and cross-complaint were under Code Civ. Proc. & 25, in county in which filed by the city, and some six weeks later realty is situated, though contractor's ultimate an order was entered, changing the venue responsibility was question to be determined to Logan county and permitting the city of in another county.

Sterling to withdraw its answer and cross

complaint. The plaintiffs declined to anDepartment 3.

swer 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.

The bonding company joined with plaintiffs Suit by William F. Allen and another in opposing the change of venue, but apagainst the City of Sterling and others. peared in the suit in Logan county, and by Judgment for defendants, and plaintiffs answer prayed that the indemnity mortgage bring error. Reversed.

be declared valid. Judgment was entered Ernest Morris, of Denver, for plaintiffs $28,811, and the mortgage was held valid.

against the Fidelity & Deposit Company for in error.

The sole question necessary to be deterT. E. Munson and Coen & Sauter, all of mined is that of jurisdiction arising out of Sterling, and L. Ward Bannister, and Sam- the order for change of venue. Section 25 uel M. January, both of Denver, for defend of the Code of Civil Procedure requires that ants in error.

actions for the determination of any "right

or interest” in real estate shall be tried in TELLER, C. J. Plaintiffs in error were the county in which the real estate is situcontractors with the defendant in error, theated. This action involved, and the judg. city of Sterling, for work on the construc- ment determined, the question of lien of a tion of a system of waterworks. The defend- mortgage on real estate in the city and counant in error, the Fidelity & Deposit Company, ty of Denver. The judgment specifically dewas surety on a bond given by the contrac- clares that the mortgage constitutes a first tors to the city of Sterling to secure the lien on the property mortgaged. That an proper performance of the contract. Plain-interest in the property was involved cannot tiff in error Allen had given to the Deposit be questioned. That being so, the cause Company a mortgage upon property in the comes squarely within the statute, and it is city of Denver to indemnify the Deposit triable in the city and county of Denver. Company against loss under said bond. The We cannot agree with the trial court that plaintiffs in error were plaintiffs below, and the fact that the ultimate responsibility of will be so designated herein.

the contractors was a question to be deter-
The complaint alleged that the city of mined in Logan county justified the change.
Sterling was making a claim against the The judgment is reversed.
plaintiffs for a large sum of money alleged
to be due it under the contract. It further WHITFORD and SHEAFOR, JJ., concur.

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

aged between $4 and $5 per day. When he was INDUSTRIAL COMMISSION OF COLORA- not working, he assisted his wife in the work DO et al. V. EMPLOYERS' MUT. INS. about the boarding house which he and his wife CO. et al. (No. 10843.)

were then operating. In view of the fact that

the claimant worked only part time at his work (Supreme Court of Colorado. July 7, 1924. of a coal miner, and that the remainder of his Rehearing Denied Nov. 10, 1924.)

time was spent in working for himself, the ref

eree is of the opinion that claimant's average Master and servant 385(1)-Finding of aver-learnings must be computed on the basis of his age weekly wage held erroneous.

daily earnings at the time of his accident. Where claimant worked 68 days during sis Computed on this basis, the claimant's average months and earned $222.86, finding that his weekly wages exceeded $20." average weekly wage was $20 was erroneous, and award of $10 was properly reduced to $5

The usual method of computing the averper week, whether computation be under clauses (b) or (c) of C. L. § 4421.

age weekly wage is that prescribed in clause

(b) of section 47 of the Act (section 4421, C. Department 1.

L. 1921), reading as follows: Error to District Court, City and County "(b) The total amount earned by the injured of Denver; Julian H. Moore, Judge.

or killed employé in the six months preceding

the accident shall be computed, which sum shall Proceeding by James M. Ratliff, under the be divided by twenty-six and the result 'thus Workmen's Compensation Act, to obtain com- ascertained shall be considered as the average pensation for personal injuries, opposed by weekly wage of said injured or deceased emthe Rocky Mountain Fuel Company, the employé, for the purpose of computing the beneployer, and the Employers' Mutual Insurance fits provided by this act, except as hereinafter Company, the insurance carrier. There was provided." an award of compensation which was set aside by the district court, and the commis

If this method had been followed by the sion and applicant bring error. Affirmed.

commission, the average weekly wage would

have been ascertained as between $8 and $9 Matt J. Kochevar and Clifford H. Stone, per week, not $20, and the compensation both of Gunnison, Russell W. Fleming and awarded would have been $5 per week, as Wayne C. Williams, Attys. Gen., and Joseph ordered by the district court. . P. O'Connell, Asst. Atty. Gen., for plaintiffs

The commission, of course, is not always in error.

required to proceed under clause (b), but Frank C. West, of Denver, for defendants

may, under certain circumstances, proceed in error.

to compute the average weekly wage in ac

cordance with clause (c) of the same ALLEN, J. This is a proceeding instituted tion, “by taking the daily earnings at the before the Industrial Commission, under the time of the accident.” This is what it did Workmen's Compensation Act (Laws 1919, do in the instant case, It is contended that p. 700). The commission awarded the claim- the commission was bound to proceed under ant, an employee, compensation at the rate clause (b), and that there was no ground for of $10 per week. The district court, on ap acting under clause (c). peal by the insurer and the employer, set It is not necessary to determine that ques. aside this award and ordered the commission tion. It is sufficient to say that there is to make an award of $5 per week. To re- neither any finding nor any evidence to jusview the judgment of the district court, the tify fixing the average weekly wage at $20 commission and the claimant bring the cause under either clause (b) or clause (c). The here for review.

commission did not find how many days each Under section 77 of the Act of 1919 (sec-week he worked. Going to claimant's own tion 4451, C. L. 1921) the claimant is entitled testimony, we find that he worked as folto an award of "fifty per cent. of the average lows: May, 8 days; June, 7 days; July, 14 weekly wages." he had been receiving at the days; August, 21 days; October, 4 days. time of the accident. Section 4421, C. L. As to September, he did not remember, but 1921, provides that the terin "wages” shall the time card offered by the employer shows be construed to mean the money rate at 14 days. In November he worked one day, which the services rendered are recompensed but that month may be excluded, because he under the contract of hire.

was injured on November 7, 1922. The findings of the commission, leading it, Claimant worked 68 days during the six or supposed to lead it, to the conclusion that months preceding the accident. Neither side the average weekly wage of the claimant offered any evidence relating to earnings at exceeded $20, so as to authorize an award of any preceding time. 68 days during 6 months $10 per week, are as follows:

means that the claimant averaged not more “Claimant worked at the coal mine of the than 3 days per week. During these 6

employer during the six months pre- months his earnings totaled $222.86. Dividceding bis injury, at such time as the mine ing this by 68 produces $3.27 as the average operated. On the days that he worked, he aver daily wage. Computed on the basis of

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

sec

error.

(230 P.) "daily earnings," as authorized by clause Garnishment in aid of attachment by the (C), the average weekly wage is not over $10, Great Western Finance Company against nor one authorizing a greater award than Millard B. Reece, with the Hamilton Nationcompensation at $5 per week.

al Bank of Denver, garnishee. The judgment Whether the commission should have com- rendered was for plaintiff against defendant, puted the average weekly wage under clause but adverse to plaintiff as to garnishee, and (b) or under clause (c), it could not, under plaintiff brings error. Reversed and remandthe admitted facts, find that the average ed, with directions. weekly wage was $20,"Referring to a some

Otto Friedrichs, of Denver, for plaintiff in what similar situation, the court, in Conrad v. Cummer-Diggins, 224 Mich. 414, 195 N. W.

Bardwell, Hecox, McComb & Strong, of 53, said:

Denver, for defendant in error. “We are not acquainted with any mathematical process by which the available facts can be CAMPBELL, J. February 20, 1923, the made to produce any such result.”

Great Western Finance Company brought an The district court was right in setting Millard B. Reece on a money demand, and

action in a justice of the peace court against aside the award. The judgment is affirmed.

on the same day an attachmeni and a gar

nishee summons in aid of the attachment TELLER, C. J., and BURKE, J., concur. the Hamilton National Bank as garnishee,

were sued out, and service thereof had upon which answered that it was not indebted to the defendant, Reece, and did not have in

its possession any property, effects, goods, GREAT WESTERN FINANCE CO. V. HAM- chattels, .rights, credits, or choses in action ILTON NAT. BANK OF DENVER,

belonging to the defendant, or in which he (No. 10908.)

was interested. The garnishee's answer was (Supreme Court of Colorado, Oct. 6, 1924.) traversed. Judgment went for the plaintiff

against the defendant in the sum of $210, and 1. Garnishment o 38Negotiable instruments the findings of the justice were in favor of held subject to garnishment.

the garnishee, and it was discharged. Upon Under C. L. 88 6091, 6094, 6102–6104, 6117, an appeal to the county court by the plain6121, 6126, 1129, 6133, 6136, 6137, promissory tiff from the judgment discharging the garnotes, bank checks, and bills of. exchange, nishee, there were two trials; the first one which are complete obligations in themselves, are subject to garnishment as well as the debts resulting in a judgment for the plaintiff and thereby represented.

against the garnishee, the second trial for

the garnishee, and it was discharged. The 2. Garnishment 38–That defendant's check

held by bank when served with garnishment plaintiff is here with its writ of error to reprocess was unindorsed by defendant, held

view that judgment. not to justify refusal to deliver it to con

The material facts are that the defendstable.

ant, Reece, before this action was instituted, That a check drawn on garnishee bank, had taken out an insurance policy upon his payable to defendant and in possession of gar- life, and had paid as a premium therefor the Dishee, when it was served with garnishment sum of $95. The insurance company canprocess, was unindorsed by defendant, did not celed the policy and notified Reece thereof, justify bank's refusal to deliver check to con- and that it was sending to the Hamilton Nastable, pursuant to C. L. 8 6104, since fact of tional Bank of Denver its check for $95, beunindorsement was no concern of garnishee.

ing a return of the premium, which the bank 3. Garnishment 112-Garnishee bank held as the agent of the insurance company would liable to plaintiff for amount of check in its deliver to Reece upon his delivery of the inpossession, belonging to defendant, and which surance policy and a receipt, apparently of it refused to deliver to constable.

the returned premium money. In accordance Where bank beld check belonging to de- with the notification to Reece he delivered fendant which, but for service on it of gar- to the bank the insurance policy and the renishment summons, it would have been its duty ceipt, and the check in question, drawn upon to deliver to defendant on his demand, and re- this bank, was left unindorsed by the ownfused to deliver check to constable, and thereafter made delivery of check impossible by er and holder thereof, with that institution. reason of sending it to defendant who ne

The check was in possession of the bank at gotiated it to innocent indorsee, bank was lia- the time the garnishment process was served ble, under C. L. 88 6104, 6137, for amount of upon it, and there was money in the bank check, to plaintiff where he obtained judgment to the credit of the drawer of the check, the against defendant.

insurance company, to pay the check which

the drawee was holding and did hold for Department 3.

that purpose. Our garnishment statute (serError 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 attachFor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

.

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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 the person in whose possession they are a defendant in his possession or under his con- copy of the attachment writ and garnishee trol, and, if such delivery is not made, the summons. Section 6104, which authorizes person so garnished shall be liable to the the garnishee to deliver to the constable the plaintiff for the amount of the debts or property belonging to the defendant and in things in action for which he would other the garnishee's possession, enumerates choswise be liable to the defendant, until the at- es in action, Section 6117, which provides tachment is dissolved or the judgment recor- for the issuance of the summons to the garered in the action is fully satisfied. The gar- nishee, if he does not deliver the garnished nishee refused to deliver to the constable property, mentions choses in action. The this check, although it belonged to the de- form of the answer which the garnishee is fendant and there was money in the account required to make, as provided by section 6121, of the drawer in the bank sufficient to pay also includes things in action of which the it. Instead of making the delivery to the garnishee has possession. Section 6126 alconstable, the bank sent this check to the lows a third person, who claims any choses in defendant, who then was living in the state action garnished, to intervene and maintain of Wyoming, and the latter deposited it with his right thereto. By section 6129 no person a Wyoming bank and received the sum of is liable as a garnishee by reason of having $95 thereon, and the check in due course was drawn, etc., any negotiable instrument, when returned to the Hamilton National Bank, and the same is not due, in the hands of the de the latter gave credit therefor to the Wyo- fendant at the time of the service of the ming bank and charged it to the account of garnishee summons, thereby indicating that the drawer.

he is liable if the instrument is then due. The first question for decision is whether Section 6133 provides that when any garin any case a check drawn on a bank is gar- nishee has any choses in action, or effects nishable, and, if so, whether, under the facts, other than money, belonging to the defendant, the check in question was garnishable, and he may deliver the same, or so much thereof what is the liability of the garnishee for fail. as may be necessary, to the officer who holds ure to deliver it when demand therefor is the execution in favor of the plaintiff in the made by the constable at the time of the attachment suit or judgment, and the officer service of the writ? At the common law may sell such things in action under execuchoses in action, like promissory notes and tion the same as other goods and chattels. bills of exchange, were not subject to gar- Section 6136, relating to the disposition of nishment. If they are in this state, it is be- property delivered to the officer by one who cause some statute so provides. Authorities is attached or garnished, specifically includes have been cited by the garnishee from Mas- choses in action. sachusetts, Pennsylvania, and other states [1] Section 6137 provides that when a garthat such instruments are not within the nishee refuses to deliver "choses in action" purview of their garnishment or attachment or other property in his possession, if the statutes. As to these cases we say that an proceedings be before a justice of the peace, examination of the statutes under which judgment may go against him in plaintiff's such decisions were rendered shows they are favor for the full amount of the judgment essentially unlike our attachment and gar- and costs against the defendant. So that, nishment statute.

even though the particular section or sections There are two kinds of garnishment in this of our statutes cited by the garnishee which state; one in aid of an attachment before describe what property may be attached or judgment; the other in aid of an execution garnished in general terms, may not specificafter judgmen When service of the gar- ally enumerate negotiable instruments or nishee summons or notice is had, under ei- choses in action, the entire act, some secther method, the procedure thereafter is tions of which we have above referred to, dispractically the same in both cases. The gar-closes that it was plainly the intent of our nishee cites section 6102, C. L. 1921, which General Assembly to make negotiable instrudescribes what property is subject to attachments subject to attachment and garnishment and garnishment, as not including ment, and that such instruments, which may things in action; the property so described be delivered to the constable if the plaintiff being "all debts” due to the defendant from recovers judgment, may be sold under exe any person. Sections 6091 and 6094 are cution and title thereto vested in the puralso cited, in neither of which are choses or chaser. These various sections just considthings in action specifically mentioned, and ered by us amount to a construction by the from this garnishee draws the conclusion legislative body itself that choses in action that negotiable instruments, which are garnishable. They also make these inthings in action, are not subject to garnish- struments themselves, which evidence debts, ment. In these particular sections things property, or a species of property. in action are not enumerated, but in section This question probably has not hitherto

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(230 P.) been expressly decided by this court, but in , tiver 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 che absence of the gar. sumed 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 plaintiti, 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 We think, therefore, that promissory notes, even liable for the amount of $95, for which bank checks, and bills of exchange, which amount the check on the garnishee was are complete obligations in themselves, are drawn; but sought and asked to have the subject to garnishment, as well as the debts check itself delivered to the constable to themselves thereby represented. They are a await determination of the action as be species of property. It is no sufficient antween the plaintiff and the defendant. The swer, which the garnishee makes, that no bank, having refused to deliver the check to | useful purpose could now be subserved, even the constable, as it might lawfully do, which if it were physically possible, by delivering was its duty, and thus be relieved from fur. this canceled and paid check to the plaintiff, ther liability, elected to retain the check or would have been served if the check itand thereafter wrongfully, as we say, sent self, unindorsed by the drawee, had been dethe check to the drawee defendant, which livered by the garnishee to the constable at enabled the latter to have it cashed in the the time of the service of process. That is state of Wyoming by an innocent indorsee, no excuse for the garnishee's refusal to dethe Wyoming bank, which later collected the liver this check in its then condition. It check from the garnishee bank in Denver. was no concern of the garnishee that the We think, therefore, that under section 6104 plaintiff might or might not be able to rethe garnishee is liable to the plaintiff for the cover on the check without an indorsement amount of this thing in action, a check for by the drawee. If the check, as is conceded, $95 (which cannot now be delivered to him), was at the time the property of the defendbecause the garnishee, had not the process ant, it was the plain duty of the bank, unbeen served upon him, would otherwise have der our statute, to deliver it to the constabeen required on demand to deliver it to the ble when notified of the garnishment. It defendant.

might also be well decided that the exchange [2] The garnishee says that under our stats of the several writings of the parties, whereute in no case may a garnishee be held un- by the bank received and held the check less, at the time of service of the writ upon owned by Reece, constituted in law a written him, he was actually indehted to the defend- acceptance of the check, and that the subseant in money upon which the defendant quent transmittal of the same to Reece for might have maintained an action against him. his indorsement was an acknowledgment or That contention might be true if only debts recognition by the bank of its prior acceptwhich the garnishee owed to the defendant ance. 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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