16 Colo. 431 | Colo. | 1891
There are several errors assigned; the first, which seems to be regarded by appellants as the most important, was want of jurisdiction in the county court. It is not shown, nor claimed, that the amount involved exceeded the statutory jurisdiction of the court; the jurisdiction is principally attacked by reasons of the granting of the injunction in aid of the proceeding. Counsel labor under an apparent misapprehension and confound the ancillary and assistant writ of injunction with the trial and determination of the suit upon the merits. The granting or refusing to grant or dissolve an injunction could not vitiate nor in any way affect the finding and decree upon the merits of the controversy, if properly tried and otherwise regular, being only an incidental or subsidiary proceeding. If illegally or improvidently granted and injury resulted, the remedy may be sought in another direction. It in no way ousted the court of jurisdiction to hear and determine the issues. It is not absolutely necessary to determine for the purposes of this case the question of the power of the county judge to grant an injunction in the premises, nor the regularity of such injunction, nor any other matters pertaining solely to liability upon the injunction bond.
There having been no default in payment during the life-time of deceased, and' the property having passed to the administrator before the maturity of the debt,— had there been an attempt on the part of the mortgagees to reduce the property to possession and dispose of it to discharge the debt, an important legal question would have been presented that we are now relieved from considering. This proceeding in equity, in which the administrator was made a party, may properly be considered as one to determine the respective rights of the parties and establish the lien upon the property in the hands of the administrator or the widow, and subject it to the payment of the debt, if the debt and validity of the mortgage were properly established. The power of sale contained in the mort
The plea of want of consideration was not sustained by any evidence. The plea of fraud and misrepresentation in obtaining the note was faulty in being too indefinite, not specifying in what the fraud and misrepresentation consisted; but it was regarded by the court apparently as being sufficient to put the plaintiff upon proof of the bona fides of the transaction. The correctness and regularity of the debt were sufficiently established and were not seriously controverted. There was quite an effort made on the part of defendants to obtain in some manner evidence to impeach the transaction. Error is assigned upon the failure of the court to compel a production of all of plaintiffs’ books of account. We think the court and plaintiffs went fully as far as required to in that direction. There was no demand for any particular book, nor any statement that any book was expected to show anything that would impeach the note, it seemed rather on the part of counsel a • praiseworthy desire to discover something that would aid them. If all the books had been presented, and it had been found that the aggregated accounts there entered did not amount to the face of the note, it would, have been at best but negative testimony to attack or cast doubt upon the consideration.
We think counsel do the court injustice in the ninth assignment, where it is said: “ The court refused to allow the defendants to impeach the consideration of the note and
We do not think that there were any substantial errors committed in the reception or rejection of the testimony. The court was warranted by the evidence in finding, that the deceased was indebted in the amount for which the note was given, and that the property in controversy had been mortgaged to secure the payment. It cannot be successfully contended that if there was an honest indebtedness, and the property claimed by the widow had in the lifetime of the husband been mortgaged and pledged to its payment, that such disposition of it would not take precedence of the right of the widow. Her right was only to the equity remaining after the payment of the mortgage. Had the property been unincumbered at the time of the decease of the husband, the widow would have been entitled to a certain amount of property regardless of debts, to be selected from that of the estate; but being mortgaged, and to that extent disposed of by the husband, the property did not pass and become a part of the estate, hut only the equity remaining passed. This is so well established and elementary that no authorities are needed in its support.
We advise that the judgment of the district court bó affirmed.
Richmond and Bissell, 00., concur.
Por the reasons stated in the foregoing opinion the judgment is affirmed. '
Affirmed.