*1 606(b) exist- codifies CRE precludes HOWELL, law in- rule which common Plaintiff-Appellee, jurors processes into the mental
quiry
into
matter or
arriving at a verdict or
v.
jury’s
during the
delib-
occurring
statement
Elvi
Dean T. FARRISH and
Joanne
Pueblo,
erations,
v.
see Santilli
Barnett, Defendants-Appellants.
(1974), except
nar-
No. 84CA0120.
circumstances. See
rowly circumscribed
People, 104 Colo.
90 P.2d
v.
Wharton
of Appeals,
Court
(1939) (juror
ju-
other
threatened
III.
Div.
rors);
Kading,
Whether point their assents to reach the where
rors by threats
the verdict obtained unanimity of the verdict be
vitiate the trial hearing court.
tested hearing, apply the trial must
In such subjective test. objective rather than
an Wharton, were “abusive in jurors threatening in language, their man-
their
ner, and coercive in their conduct” “physical made threats of com-
allegedly disagreed juror who
bat” towards one Here, majority. there threats, abuse, or coercion
evidence argumentation. mere The trial
beyond denied defendant’s
court therefore for new trial.
motion
Judgment affirmed. METZGER, JJ., concur.
TURSI Gregory
Stutz, Delap, & R. Dyer, Miller Denver, for Stutz, Donnelly, F. James plaintiff-appellee. de- Meininger, Englewood, for
John A. Elvi Joanne Barnett. fendant-appellant *2 10 Appearance
No for defendant-appellant by deemed the property paying to the Dean T. Farrish. the amount due under the deed of trust in favor of the bank. BERMAN, Judge. Thereafter, plaintiff filed this action in defendants, Two Dean T. Farrish and the district court requesting judgment Barnett, appeal Elvi Joanne judgment that defendants had no homestead exemp- plaintiff, Howell, favor of respect tion with to the property. plaintiff’s redemption of cer- granted The district court request, and property tain real from a appeal this ensued. pursuant 38-39-101, to § 38-41-201, (1982 Section C.R.S. Repl.Vol. C.R.S., does not proceeding constitute a 16A) provides that: against property require that would “Every homestead ... exempt shall be procedures compliance specified from execution and arising attachment exemption statute, 38-41- § from exceeding debt ... not in value 201, (1982 16A). C.R.S. $20,000_” the sum of (emphasis add- The issue us is whether a ed). judgment lien creditor may redeem from a Here, however, the exemption according proce- trustee’s sale clause inapplicable. While the statute set dures forth in 38-39-102 and 38-39- concerning exemption gener- 103, (1982 Repl.Vol. 16A), ally interpreted liberally, such is, nevertheless, entirely a creature of stat- exemption statute, § 365, ute. Knight, Barnett v. 7 3 P. (1982 16A). et seq., RepLVol. We (1884). Thus, 747 there are no homestead hold that a exemption rights independent of the stat- may do so and therefore affirm. O’Rourke, 301, ute. McPhee v. 10 Colo. 15 following. facts in this case are the (1887); P. 420 Helkey Ashley, 113 Colo. Defendants Farrish Barnett were hus- (1945). years band and for 17 jointly wife Here, plaintiff redeemed property question. owned the prop- question at a pursuant foreclosure sale erty by was encumbered deed trust (1982 16A). RepLVol. § which contained a waiver of the homestead only party “executing” upon defend- by clause defendants. The ex- ants’ Arapahoe was the emption allows a homeowner to exclude Bank, plaintiff. not A judgment debt, contract, execution or civil creditor’s is also entire- obligation $20,- exceeding not the sum of ly a matter of statute. First National 000. Section Bank v. Energy Corp., Fuels 200 Colo. Vol. (1980). Like the statute 13, 1981, August On marriage concerning exemption, stat- April defendants was dissolved. On concerning rights utes are 1982, plaintiff judgment recorded a lien on liberally also to be construed. Walker v. based ob- Wallace, (1922). P. judgment against tained defendants. On Contrary assertions, to defendants’ 17, 1982, August proceedings pro- statute is not an execution against commenced the property cedure; rather, purpose serves the Arapahoe Colorado National Bank. On benefiting debtors and creditors reduc- the bank ing satisfy- owner’s debt while property for the amount due it. Neither possible every creditor. First Nation- Farrish nor Barnett the redemp- exercised v. Energy Corp., supra. al Bank Fuels tion them accorded 38-39- § 30, 1982, pursu- C.R.S. On December Section RepLVol. C.R.S., ant plaintiff provides that:
H cause Farrish and Barnett had waived the redemption is made within the “If no exemption as to the Bank. provided for in redemption period However, this was not effective as 39-102, may redeem lienor ... the ... to Howell. expiration of days ten after the within by obtaining redemption period the above required by 38-39-102.” the amount (cert. denied Nov. *3 8, 1982), a of this court held that waiver procedures, and followed these Plaintiff right in deed of trust does not homestead a thus, con- redemption rights his cannot be right a of as to all constitute waiver that to be an execution. strued a of creditors and thus was not waiver Neither to lien- (Colo.App.1982) nor Patterson holders. Frank July was decided on Serafini, holding controlling and its is in this cases, (1974) here. In those applicable Thus, the case. Bank had owner, than that an rather the court held in of re effect favor Howell when he lienor, redeeming junior entitled to the 30,1982. deemed the on December surplus sold the of the Frank importance to of the trust sale over the amount trustee’s this case is underscored the fact that Here, plaintiff deed indebtedness. amended, provisions paying to the property by the deemed effective June with an additional the exact the sum the effects of a section which extends waiv- of trust. due under the deed amount persons er of redeem- for public policies a competing Given ing property sold in foreclosure. Section construction of liberal both (1985 Cum.Supp.). This redemption stat- and the exemption statute subsequent enacted to all mate- section was ute, conclude the trial court we hand; therefore, it in at rial events the case redeem held that a bearing on the outcome of this case. has no Nevertheless, highlight serve to does 39-102 and foreclosure, re- interrelationship between Yol. exception. demption, statute, redemption must be right of Howell’s statutory light frame- considered judgment is affirmed. which created work exercised. applicable when it was METZGER, J., concurs. includes the homestead That framework TURSI, J., exemption. dissents. ex- Because Frank limits a homestead TURSI, dissenting. Judge, only emption waiver a deed of trust I respectfully dissent. deed, beneficiary of that trust Howell’s ruling trial court I reverse the would subject to right of remains comply with of Howell’s failure to
because exemption. There- undisputed homestead provisions fore, reap the is not entitled to Howell concluding that How- trial erred complies until he benefit was not ell’s of the homestead property. proceeding against at statutes set out undisputed It is (Bank) Bank
Arapahoe Colorado at question sale for the amount owed un- trust. This was done without
der a deed of exemption be-
regard to the homestead