8 Colo. App. 266 | Colo. Ct. App. | 1896
delivered the opinion of the court.
This was an action of replevin, brought by appellant as plaintiff against appellee (defendant) to recover possession of certain chattels; complaint in the ordinary form. Defendant answered that he, acting as constable, did on the 20th day of September, 1893 (the date is probably a typographical error, as it is shown to have been September 28th), levy upon and take into his possession under and by virtue of a writ of attachment that day issued by F. D. Morse, as justice of the peace in the county aforesaid, in the suit of Stephen Comer against Levi C. Johnson, “a part of the goods in controversy.” Plaintiff claimed the goods as owner by virtue of a purchase made from Johnson. The plaintiff alleged in reply (1) that the defendant was not a constable authorized to make the levy; (2) that he was not a constable or specially deputized by an}'' valid indorsement or process to make the levy. The following is the docket entry of the justice of the peace in Comer v. Johnson:
“September 28th, 1893, comes plaintiff, and files affidavit and bond in attachment. Bond approved. Process issued, returnable October 3d, of 2 P. M., and delivered to S. T. Ferrier, special constable. Summons and writ returned. Same indorsed, 1 Served September 28, 1893, by leaving a copy of the within summons with Levi C. Johnson, the defendant herein.’ Writ indorsed, ‘Executed the within writ September 28, 1893.’ * * * October 3d, 2 p. m. Defendant not appearing within the hour, upon motion default was taken. Plaintiff made the proof, and the court, being fully advised in the premises, doth order that the attachment be sustained, and that plaintiff have and recover from the defendant the sum of $284.67, and the further sum of $12.30 costs accrued in this action, and that order of sale and execution thereof.
[Signed] “Flodo D. Morse, J. P.”
The evidence upon the trial of this case discloses an orig
The only question presented for our determination is whether the court erred in regard to the law of the case in lidding the justice’s court to be a court of record, and his docket, shown to be a lie, of such absolute verity as to enable a party to confiscate the property of another under a claim of judicial proceedings. The learned judge said: “By virtue of section 2787, Mills’ Ann. Stats., the legislature of this state has made justices’ courts courts of record.” We do not so understand the effect of the section, nor that intention of the legislature. There is nothing in it to extend the powers of the court or give it a greater dignity than it possessed before. The word “ record ” may have been unfortunately used instead of “ docket,” but it is evident that it means
Beversed.