4 Colo. App. 350 | Colo. Ct. App. | 1894
delivered, the opinion of the court.
App & Stott brought suit against one Robert Stride, who made default, and judgment went against him. A writ of garnishment was issued upon the judgment, and served upon the City Block Directory Company, against which judgment was entered for want of an answer. The company moved the court to vacate the judgment, and the motion was denied. The company appealed. The ground of the motion was that the company was misled into the default by the plaintiffs’ counsel. Affidavits were filed in support of the motion, and counter affidavits against it. It appears that on the day of the service of the garnishment, Elisha Proctor, the secretary of the company, prepared and verified an answer, denying any indebtedness to Stride. In his affidavit he states that soon after its preparation he showed the answer to E. E. Sehlosser, the attorney of plaintiffs, who represented to him that it was unnecessary to file it, as it showed that the company owed Stride nothing; and that, accordingly,relyingupon Schlosser’s representation of the want of necessity for filing the answer, he did not do so. E. J. Miller, W. J. Winters and H. W. Hilton each made affidavit to a conversation between Miller and Schlosser, in which Miller asked Schlosser how he happened to get a judgment against the company, to which he replied that he had fixed up a trap, and the company fell into it. The original answer, verified as stated by Proctor, was also introduced. Schlosser, in opposition to the motion, made affidavit giving a somewhat different version of the con ver
Reversed.
