45 Colo. 557 | Colo. | 1909
delivered the opinion of the court:
The plaintiff, as mortgagee, and claiming the right of possession under two chattel mortgages,
Mayhew v. Smith, 42 Colo. 534 (95 Pac. Rep. 549), was an action by the mortgagor Mayhew against the same defendants, for an unlawful seizure and sale of the same chattels, ownership and possession of which Mayhew claimed. Most of the questions relied upon here by appellant are the same as those raised by appellant there, and considered and decided in that ease adversely to him. A careful' examination of the record now before us shows that, of the questions argued here by appellant which are worthy of any consideration at all, only two were not decided there, and only these two are for determination on this appeal. These questions are:
A. As to the validity of the appointment by the justice of the peace of the defendant Wallace as a special constable to serve the writ of execution.
B. Concerning the scope and effect, as against the writ of execution, of plaintiff’s rights under her mortgages.
In the Mayhew case, the same objection was made; hilt, because of appellant’s failure, to object to the ruling of the trial court that the appointment was valid, the question was not then determined. Here it is squarely raised. Section 2794, 2 Mills’ Ann. Stats., is the section of the statute whose construction is involved. It authorizes a justice of the peace to appoint a person to act as constable in a contingency there named, which shall “he made by a written endorsement, under the seal, of the justice deputing, on the hack of the process which the person receiving the same shall he deputed to execute.” The specific objection made is that the justice did not literally write out the appointment on the very hack of the writ. This statute was taken from Illinois, and, in Gordon v. Knapp, 1 Scam. 489, it -was held that an appointment thereunder must he in strict conformity to the statute, otherwise it is void. This statute, though not the precise question here involved, has been considered by our court of appeals, in Cort v. Newman, 6 Col. App. 154, and Cunningham v. Bostwick, 7 Col. App. 169, and the construction of the Illinois court was adopted. In Hamill v. Ferrier, 8 Col. App. 266, where the appointment of the constable was made by the justice on a separate paper, it was held that this was not a compliance with the statute. In none of these cases, however, were the facts the same as in the case at bar. Here the special appointment, though not literally made upon the hack of the writ of execution, was properly
By section 2669, 2 Mills’ Ann. Stats.: “The personal property of every defendant in a judgment before a justice of the peace shall be bound for the payment of such judgment from the delivery of the execution issued thereon to the constable.” Under this statute, the lien, secured by the delivery of the writ of execution to the constable before the execution of the second mortgage, constituted a superior lien to that which plaintiff’s second mortgage gave her, even though she took possession before the levy of the writ. Witnesses, including the special constable, testified that that officer had a certified copy of the first mortgage before him at the time of the levy of the writ, and that it was not levied upon, and he did not seize or take or sell thereunder any of the property covered by the first mortgage, but left it upon the premises for the benefit of whoever was entitled to it.
It therefore appearing that there was evidence which justified the finding that no property to which plaintiff was entitled under these mortgages was seized or taken by defendants, plaintiff is not entitled to damages for its value.
There is no prejudicial error in this record, and the judgment is therefore affirmed. Affirmed.