11 Colo. App. 73 | Colo. Ct. App. | 1898
delivered the opinion of the court.
At the trial of this cause the court permitted Poundstone, who was a witness for himself and his codefendants, to testify in contradiction of his returns upon the attachment writs. He said that he did not levy the writs, or take the property into his possession, giving as his reason for not doing so that it had already been levied upon by virtue of a writ of attachment issued in a cause entitled Miles vs. Garrison & Howard, and was in the custody of the law. His testimony would seem to be contradictory, not only of his returns, but of the facts. The writs which he was required to execute came into his hands on the 29th day of January, 1892, and whatever he did in the way of levying them was done oil that day. The writ in the Miles case was not levied until February 1, 1892. But, waiving this discrepancy, the
But defendants’ counsel says that the attachment plaintiffs abandoned their attachments by failing to cause orders of sale to be issued on their judgments. Section 2013 of the General Statutes, provides that in cases of attachment in justices’ courts, if judgment be recovered by the plaintiff, the justice shall issue an order of sale to the constable, directing him to satisfy the judgment out of the proceeds of the property attached by him, and in case the property attached shall not be sufficient to satisfy the judgment, execution shall issue as in other cases. No order of sale was issued upon these judgments. The only writs issued were general executions. The argument is that the justice had no authority to issue the executions until after orders of sale had been issued and had failed to produce money sufficient to satisfy the judgments ; and that the executions having been issued out of time were void writs. What purpose this argument is intended to sub-serve we are unable to see, unless it be to compel an inference that the attachment plaintiffs, by their negligence in causing improper writs to be issued, and in failing to cause the issue of proper writs, were themselves responsible for the inability of the officer to collect their judgments. It will not take us very long to dispose of the argument and all the inferences deducible from it. Upon personal judgments rendered by justices executions may be issued immediately.
Some instructions asked by the plaintiff were refused which should have been given, but we need only say concerning them that in their refusal the court committed the same error that it did in admitting the testimony of the constable falsifying his returns. Questions were raised below by a demurrer to the complaint, and by a motion for a nonsuit, which are not mentioned by the defendants’ counsel in his argument, and are therefore not noticed by us. For the error committed in permitting improper and incompetent evidence to go to the jury, the judgment will be reversed.
Reversed.