Welsh v. Noyes

10 Colo. 133 | Colo. | 1887

Stallcup, C.

The first question presented is, Had the superior court jurisdiction in the case? In the argument of this question here, counsel have ignored the statutes for this proceeding before a justice of the peace, and have discussed the question on the assumption that the issue involved a matter of equity jurisdiction, and fob that reason the justice was without jurisdiction, and consequently the superior court without jurisdiction. The issue made and tried before the justice was upon the traverse of plaintiffs to the answer of the garnishees. The garnishees in their answer disclosed the chattel mortgage of defendant to them, and that they held a stock of goods by virtue of such chattel mortgage. In the traverse, among other things, it was alleged that the chattel mortgage was given by the defendant to the garnishees with intent and for the purpose of hindering and delaying creditors, and also charging the garnishees with the knowledge of and participation in such fraud. The justice had jurisdiction to hear and determine such issue.

Section 1553, page 517, General Statutes, provides for the garnishee summons issued in the case. Section 155á provides for the interrogatories and answers in the case. Section 1557 provides for the traverse of such answer by the plaintiffs, and for the issuing of the scire facias requiring the garnishees to appear before the justice on the date named therein to try the issue so made, as was done in this case. Section 1563 provides that judgment by the justice against such garnishee shall acquit the garnishee from all demands of the defendant; for all' goods, effects and credits paid, delivered or accounted for by the garnishee by force of such judgment. Section 1526 pixwides that every conveyance or assignment in writing or otherwise of any estate or interest in lands or goods, and every charge on lands or goods, with intent to hinder, delay or defraud creditors of their lawful demands, shall be void as against such creditors. Section 1529 provides that the question of fraudulent intent in such cases shall be deemed a question of fact, and not of law. Section 1530 provides that the purchasers in such cases are implicated in such fraud by previous notice. From these provisions it is apparent that the justice had jurisdiction to hear and determine the issue so made between the plaintiffs and the garnishees. Had"the superior court like jurisdiction on appeal from this judgment?

Section 1573 especially provides for appeals from such judgments of the justice, and section 3222 of the same General Statutes vests the superior court with such appellate jurisdiction. The superior court erred in adjudging that it had no jurisdiction in the case.

The next question is, Hid the superior court err in ordering the modification of the stipulations of counsel in the case by striking out- the fourth paragraph of plaintiffs’ traverse to the answer of the garnishees? Agreements of this kind are unlike ordinary contracts between parties not in court. In a stipulation by counsellor convenience or expedition in the trial of a case, if counsel, inadvertently or otherwise, admit or state a fact not in accord with the premises, entirely against the manifest purpose and intention of the parties and the nature of the controversy, and to the irreparable injury of the client they represent, as this seems to be, the' court wherein such cause is pending has the power, and rightffilly exercises it, to relieve the party from such stipulation. Richardson v. Musser, 54 Cal. 196; Becker v. Lamont, 13 How. Pr. 23. But such relief cannot be granted in the way it was done in this instance. The paragraph struck out was a material portion of the traverse; and, if true, vitiated the chattel mortgage, and made the goods subject to the payment of the debt of plaintiffs. So that the rights of the plaintiffs were thereby materially affected. The court erred in making such order. The proper way to relieve the party from such stipulation is to cancel the stipulation. It follows that the discharge of the garnishees in the premises was error.

The judgment should be reversed and the case remanded.

Macon and Bising, CO., concur.

Per Curiam.

For the reasons assigned in the foregoing opinion the judgment is reversed and the case remanded.

Reversed.