5 Colo. App. 379 | Colo. Ct. App. | 1895
Lead Opinion
delivered the opinion of the court.
Barth Brothers brought suit in La Plata county against M. R. Shields for goods sold and delivered. A writ of attachment was issued in the cause, and the board of commissioners of La Plata county summoned as garnishee. During the pendency of the suit the cause of action was assigned to the plaintiff in error, and he substituted in place of the original plaintiffs. Judgment was given against Shields, and the cause went by appeal to the district court of the same county, where judgment was again rendered against him. In the district court the defendant in error appeared, and moved to dismiss the garnishment proceedings against it on the ground, among others, that proceedings in garnishment cannot be had against a county. The motion was sustained, and final judgment rendered in favor of the garnishee, from which the plaintiff has prosecuted error.
Several questions are discussed by counsel, but the only one which we deem it necessary to consider is whether, in this state, a county is subject to garnishment. The reports contain a large number of cases in which the question of the liability of counties and municipal corporations to garnishment has been decided; but there is such a disagreement
Section 119 of the code of 1887 provides for process in garnishment as follows: “ Whenever in any action pending in any court of record, a writ of attachment has been issued and delivered to the proper officer, and the officer after diligent search shall not be able to find property of the defendant sufficient to satisfy the claim of plaintiff, the officer shall upon the request of plaintiff, his agent or attorney, summon such person or persons as the plaintiff may direct as garnishees to appear before the court wherein such action is pending.” Section 442 contains this provision : “ In the construction of this act the following rules shall be observed when consistent •with the context. * * * The word ‘ person ’ extends to bodies politic and corporate.” The following has always been a part of our statutory law: “Each organized county * * * shall be a body corporate and politic, and as such shall be empowered for the following purposes: First, to sue and be sued. * * *” Rev. Stats., 1868, p. 167 ; Gen. Stats., 1883, p. 254. An argument of counsel, based upon these several statutes is, that as any person is subject to garnishment, and as the word “ person ” extends to bodies corporate and politic, and as counties are bodies corporate and politic, therefore counties are subject to garnishment. Upon its face, this argument seems plausible; but, for reasons which we shall proceed to give, we must withhold our assent from the conclusion reached.
The attachment law in force in 1868 provided as follows: “ Sec. 12. When the sheriff shall be unable to find property of any defendant, sufficient to satisfy any attachment issued under the provisions of this chapter, he is hereby required to summon all persons within his county, who may be named in the writ, or whom the creditor shall designate as having
But here we are met by the contention put forward by counsel, that the term “ municipal corporations ” includes counties, and that, therefore, by the express terms o£ the act of 1891, counties are subject to garnishment. There has sometimes been a loose and indiscriminate use of that term in speaking of cities, towns, and counties, in cases where it was not disputed that some particular law which was the subject of construction applied equally to all of them; and, in determining the sense in which the term is employed in the act of 1891, cases where it is loosety used, or even misapplied, the facts not calling for critical accuracy in that respect, are of no assistance whatever. We are referred to sections 7 and 8 of article 10 of the constitution, where the words “ county, city, town or other municipal corporation ” are used; but the word “other” does not necessarily refer back to the word “ county.” No violence would be done to the language employed, if the word should be confined, in its reference, to the words “cities ” and “towns;” and, if it is important to know what meaning the makers- of the constitution attached to the words “ municipal corporations,” as used in that instrument, an examination of section 13, art. 14, will, we think, be satisfactory. It seems clear, from that section, that the words were intended to be limited, in their application, to cities and towns. But it is the legislative meaning of the words which it is important to know, and, to ascertain that, we must avail ourselves of the usual means employed in the construction of statutes. Counties are classified by all writers upon the subject as “ quasi corporations,” in contradistinction to “ municipal corporations.” The distinction between these two classes of public corporations is very clearly drawn by Mr. Dillon in section 23 of his work on Municipal Corporations, and we think a careful examination of the attachment and garnishment laws which have been enacted in this state will make it apparent that the leg
There was no waiver of the county’s exemption from garnishment. The county clerk answered the interrogatories accompanying the writ, but in so doing he acted in the character of a witness, merely, and did not represent the county. The county’s first appearance was by the county attorney, when he moved to dismiss the proceedings in garnishment. Commissioners v. Bond, supra. The judgment was correct, and will be affirmed.
Affirmed.
Rehearing
ON PETITION FOR REHEARING.
delivered the opinion of the court.
A petition for rehearing has been filed in this case, supported by a brief of counsel representing the defendant in error, and also by a brief of counsel appearing in another case pending in this court, the fate of which is dependent upon the final decision in this case; and, in view of the importance of some of the questions involved, we deem it-advisable to devote a little more time and space to them than we did originally. It is urged that we were in error in holding— JTirst, that the word “person,” in section 119 of the code of 1887,'does not include counties; second, that counties are not municipal corporations; third, that counties are quasi corporations; and, fourth, that there was no waiver of the county’s exemption from garnishment.
.In regard to the first proposition, we deem it unnecessary to add anything to our former opinion. The decision in City of Denver v. Brown, 11 Colo. 337, to which we have been referred, is in entire accord with the previous ruling of the supreme court upon the question, and with the views expressed by us. But we think that a little more attention may profitably be given to the remaining propositions. .
. It is argued that, where the words “ quasi corporations ” are applied by the authorities to counties, reference is had to counties as they existed at common law, and not to counties
It was held in Commissioners v. Bond, 3 Colo. 411, that a county’s exemption from garnishment might be waived by
Rehearing denied.