24 Colo. 502 | Colo. | 1898
delivered the opinion of the court.
On May 15,1893, William R. Mygatt made an assignment, for the benefit of his creditors, to plaintiff in error James F. Hopkins, as assignee. On August 25,1893, Burr & Knapp, defendants in error, filed in the district court of Arapahoe county their petition, wherein they allege in substance that on March 6,1893, they placed in Mygatt’s hands (who was at that time doing business as a broker) one hundred shares of the capital stock of The Denver Consolidated Gas Company for sale; that afterwards, and on March 28, 1893, Mygatt sold said stock for the sum of $52.00 per share, and received therefor the sum of $5,200; which sum, less $26.00, the commission of Mygatt for making the sale, to wit: $5,174, was the property of petitioners, in which Mygatt had no interest, and that said sum constituted a trust fund, to which they alone were entitled. This sum he failed to
On the same day the petitioners, the assignee and Mygatt, appearing by their respective attorneys, a hearing was had on said petition. Upon the evidence introduced the court found that the allegations of the petition were true, and ordered the assignee to pay petitioners, out of the first money coming into his hands, the said sum with interest. On October 31, 1894, The National Bank of Commerce, James Leonard and John C. Montgomery, the other plaintiffs in error, filed their petition asking that the foregoing order be set aside. The assignee Hopkins appeared, and filed his answer to this petition, but no notice thereof was ever legally served upon the defendants in error, and no further proceedings were had thereon in the court below. On March 18,1895, by order of the court the assignee was authorized to sue out this writ of error.
Upon the filing of the record in this court, counsel for defendants in error interposed a motion to strike out all that portion which purports to be a transcript of the proceedings had subsequent to the entry of the original judgment, which motion was overruled. But, upon a further investigation, we are led to a different conclusion, and are satisfied that these proceedings in no way affect the original judgment, and are not properly a part of the record. If, after the time that had elapsed since its rendition, the judgment could be assailed in the manner attempted, and for the reason set forth by plaintiffs in error in their petition, it was certainly incum
'The circumstances under which equity will follow and reclaim a trust fund that has been wrongfully converted by a trustee, have been stated in former decisions of this court and of the court of appeals. McClure v. La Plata County, 19 Colo. 122; Holden, Adm’r, v. Piper, Assignee, 5 Colo. Ct. App. 71.
In McClure v. La Plata County, it is said:
“ That in order to subject a private estate of a defaulting trustee to the payment of the trust fund that has been by him wrongfully converted, while it is not necessary to trace such funds into any particular property, it must be clearly shown that it went into, and was used for the benefit of such estate.”
Under the averments of this petition, as we have seen, evidence was admissible to show that the trust fund was so used as to bring the case within this rule; and in the absence of the evidence from the record, it is to be presumed that such evidence was introduced, and that the court below correctly found that it sustained the truth of the averments. The judgment of the court below must therefore be affirmed.
Affirmed.