15 F. 220 | D. Colo. | 1883
(orally.) September SO, 1882, Abraham Euh and others brought suit in this court against H. S. Gosline to rfecover $1,491, alleged to be due to them from the said Gosline for goods sold and delivered. On the same day they took out an attachment, which was levied on certain goods of the defendant. October 17,
This term of court was oponed on the third day of October, 1882, and it will be observed that the suits above mentioned, in which writs of attachment were issued, were begun before the term. The present case, in which Julius Baum and others are plaintiffs, was begun October 14,1882, and judgment rendered therein against the defendant October 18, 1882, for the sum of §1,378.50.
No writ of attachment was issued in this suit, but plaintiffs claim that they are entitled to share in the proceeds of the property attached in the other suits above mentioned, under section 116 of the Code, which reads as follows:
“In all cases where more than ono attachment shall be issued against tho same person or persons and returned to the same term of court to which they are returnable, or when a. judgment in a civil action shall also he rendered at the same term against the defendant, who is the same person and defendant in the attachment or attachments, the court shall direct the clerk to make an estimate of the several amounts each attaching or judgment creditor will bo entitled to out of the property of the defendant attached, either in tho hands of the garnishee or otherwise, after the sale and receipt of the proceeds thereof by the sheriff, calculating such amount in proportion to the amount of their several judgments, with costs, as the same will respectively bear to the amount of the sum received, so that each attaching and judgment creditor will receive his just part thereof in proportion to his demand,” followed by directions for distributing the fund.
That section was in the first attachment act of the territory of Colorado, approved October 29, 1861, (First Session Territorial Assembly, 210,) and it was obtained from the statutes of Illinois. Before it was enacted by the territory of Colorado, it had received a construction in Illinois to the effect that only those creditors who should obtain judgment at the term of court to which writs of attachment wore returned and returnable, could share in the proceeds of property attached. Rucker v. Fuller, 11 Ill. 223.
In the territory of Colorado this section survived the changes made from time to time in the attachment act, until the admission of the state, (Bev. St. 1868, p. 6,) when it was incorporated into the Code as section 116.