City of Denver v. Brown, 11 Colo. 337

City of Denver v. Brown

11 Colo. 337 | Colo. | 1888

Elbert, J.

The doctrine of the case of the Commissioners v. Bond, 3 Colo. 411, “ that municipal corporations are not subject to garnishment,” rests upon considerations of public policy, which obtain in the absence of any statute on the subject. It cannot be appealed to when the legislation of the state indicates a different pol*341icy. Why, in attachment proceedings commenced in the district or county courts, the legislature made municipal corporations liable to garnishment prior to judgment (Code Civil Proc. ch. 6, § 104), and exempted them from garnishment in cases commenced before a justice of the peace (Gen. St. § 2007), is not very clear. These provisions were enacted af the legislative session of 1879, although the code provision was but a re-enactment of what, in this respect, was the law before. The intention may have been to relieve municipal corporations from the harassment and embarrassment of garnishee proceedings in multitudinous and comparatively unimportant suits commenced before justices of the peace. However this may be, by the two provisions cited it became the declared legislative policy of the state to permit the garnishment of municipal corporations in the former case, and to deny it in the latter. While the law stood thus diverse in respect to proceedings in garnishment prior to judgment, its admissibility depending upon the forum in which the litigation was pending, the same legislature enacted a general law respecting “ garnishment in courts of record and before justices of the peace on judgments rendered,” section 1 (Gen. St. § 1551) of which is as follows: “Whenever a judgment shall be rendered by any court of record or any justice of the peace in this state, an execution against the defendant or defendants in said judgment has been issued and delivered to the proper officer, and the officer, after diligent search, shall not be able to find property of the defendant or' defendants in his county sufficient to satisfy the same, the officer shall, upon request of the plaintiff, his agent or attorney, summon such person or persons as the plaintiff may direct, as garnishees, to appear before the court or justice of the peace from which the execution issued. If before a court of record, the summons shall be made returnable and be served the same as other summonses in courts of record;, if before a justice of the peace, the summons shall be *342made returnable within the same time, and served in the same manner, as ordinary summons issued by justice of the peace. * * *” ' It is to be observed that this, section says nothing of the garnishment of municipal corporations, unless they are to'be included under the general term of persons. The question presented is, Does this section admit of the garnishment of a municipal corporation on execution issuing out of the district court, and upon a judgment rendered in that court? Standing alone, the general terms of this statute would not be construed to admit of such garnishment, under the doctrine announced in Commissioners v. Bond, supra. Statutes, however, are to be construed in pari materia, and, as by the code provision cited the writ is allowed in the district court against municipal corporations prior to judgment, we see no room for saying it should not be allowed by the same court after judgment, under the provisions of section 1551. In other words, the general provisions of section 1551, in so far as they relate to “ judgments rendered by any court of record,” should be construed with reference to and in harmony with the legislative policy declared in the code provision. In this view the judgment of the court below was authorized. Whether this same section 1551, in so far as it relates to judgments rendered by justices of the peace, must not also be construed with reference to and in harmony with the different legislative policy indicated in section 2007 of the General Statutes, is a question not presented by the record before us.

The judgment of the court below is affirmed.

Affirmed.