20 P.2d 543 | Colo. | 1933
JOHN A. Higbee brought an action in the Denver district court against the defendant, William Estep, asking for a judgment of $500 which he claimed to be due him from the defendant for services as a broker which he *347 rendered to the defendant in the sale or exchange of properties. In aid of the action plaintiff sued out a writ of attachment which was levied upon an automobile that was then in possession of the defendant. While this car was in possession of the sheriff, and prior to entry of any judgment in the action, the plaintiff in error here, the Commercial Credit Company, filed a petition of intervention in the case alleging, in substance, that the defendant Estep had purchased this automobile in California under a conditional sales contract which contract represented the balance of the purchase price of the automobile, and the credit company demanded that the automobile should be released to it. Higbee, the original plaintiff in the action, demurred to this petition of intervention and the demurrer was sustained by the district court, to which ruling the credit company excepted, and has brought this writ of error seeking a reversal of the adverse judgment against it. As there is no appearance here for the defendant in error Higbee, this court is without any assistance from the successful party below in the determination of the controversy.
Counsel for the plaintiff in error thus states the proposition for decision: "Shall the courts of Colorado recognize the rights of a vendor of an automobile or his grantee under a valid conditional sales contract executed in California as against the rights of an attaching creditor in Colorado who levies upon the automobile which has been removed to Colorado without the permission or consent of the vendor or his grantee?" The conditional sales contract in question contains the following provisions: "Title to said property shall not pass to the purchaser until all sums due under this contract are fully paid in cash and all the terms, conditions and covenants of this contract are fully performed. * * * The purchaser shall keep such property free from all taxes, liens and encumbrances; shall not use the same or allow the same to be used for any unlawful or illegal purpose or for hire; shall not remove the same from the state * * * *348
without the written consent of the seller; purchaser shall not transfer any interest in this contract or said property, nor suffer the same to become the subject of the levy of any writ of attachment * * * or any other process." The argument of counsel for plaintiff in error submits the following proposition: "The sales contract, by repeated decisions of the courts of California, is enforceable in that jurisdiction and the rights of the seller thereunder are superior to the rights of any attaching creditor or purchaser for value without notice in that state; second, that the doctrine of lex loci contractus and the rule of comity should be applied." In Oakland Bankof Saving v. California Pressed Brick Co.,
[1-3] The question for decision here, however, is whether the California doctrine should be enforced by the courts of Colorado under the rule of comity? It may be, as contended by counsel for plaintiff in error, that the majority rule in this country is what he says it is. However that may be, we think the question is settled in this jurisdiction by a previous decision of this court inTurnbull v. Cole,
Whatever, therefore, may be the rule in other jurisdictions, Colorado is committed to the doctrine declared in the Turnbull and Mosko cases, supra. It is contrary to the contentions of plaintiff in error. Judgment is therefore affirmed. *350