MARKS v. ANDERSON, (MAYNARD, Intervenor.)

27 P. 168

1 Colo.App. 1

MARKS
v.
ANDERSON et al., (MAYNARD, Intervenor.)

Court of Appeals of Colorado

June 23, 1891

Appeal
from district court, Chaffee county.

[1
Colo.App. 2] G.K. Hartenstein, for appellant.

C.S.
Libby, for appellees.

REED,
J.

The
records and abstract in this case are both
"defective." It appears by an allegation in the
petition of the intervenor that at some time prior to the
intervention of appellee appellant had obtained a judgment
against Anderson & Son, but at what time and for what amount
is not disclosed. An execution appears to have been issued
and garnishee process served upon Bradbury. On the 3d of
June, 1887, Bradbury was a contractor on the Midland
Railroad. Anderson & Son were subcontractors under Bradbury,
and were indebted to the firm of Wood Bros. in the sum of
$6,619, and to Maynard & Co. in the sum of $3,000. That on
that date Wood Bros., by an instrument in writing, assigned
its claim and indebtedness to Maynard, (appellee.) That such
claim was not purchased by Maynard, or at least no
consideration passed, the object of the assignment being to
transfer the claim, allowing the assignee to collect it, and
pay it over to the assignor, or a due proportion of what
should be collected, such payment to be applied ratably upon
the entire indebtedness in the hands of Maynard, amounting to
near $10,000. On the same date, Anderson & Son, by an
instrument in writing, assigned to Maynard all moneys due and
to become due from Bradbury to them upon the subcontract to
pay or secure the two claims in the hands of Maynard. It
appears incidentally that Anderson & Son completed their
contract, and that upon its completion there was a
considerable sum of money in the hands of Bradbury, due by
him for the work of Anderson & Son. What the amount was is
nowhere shown. It also appears incidentally, in the judgment
of the court [1 Colo.App. 3] only, that before the
determination of this case Bradbury had paid a sum of money
into court to await the result. Whether it was all that was
owing by Bradbury, or what the amount was, is not shown. The
case was tried to the court without a jury, the only
testimony introduced being that of the intervenor. The
judgment of the court was as follows: "It is ordered
that the clerk of this court pay over to the said intervenor
the amount of the deposit in his hands, and it is further
considered by the court that the said defendants do have and
recover of and from the said plaintiff all their costs in
this behalf expended, to be taxed, and have execution
therefor." The only assignment of error is the
following: "The court erred in rendering judgment in
favor of the intervenor, because the testimony was not
sufficient to entitle him to recover."

The
only question is, "was the evidence sufficient to
warrant the finding?" No question of fraud or collusion
was made by the pleadings. It appears to have been conceded
that the amounts claimed by Wood Bros. and Maynard were due,
and were just debts. The main contention on the part of the
appellant is that the assignment of Wood Bros. to Maynard,
being only for collection,--no consideration having been
paid,--did not vest the intervenor with a title, so that he
was entitled to the assigned fund to the exclusion of other
creditors. It is conceded that, so far as the original claim
of Maynard was concerned, it was, by virtue of the assignment
of Anderson & Son, entitled to priority from the fund
assigned. The important question seems to have been
overlooked by counsel, or made secondary. If the assignment
of Anderson & Son of the entire fund for the payment of the
two claims was legal and proper, there was a disposition by
the assignors of the entire fund sought to be reached by the
appellant, and, if that disposition was valid, it is
unimportant whether the payment of the claim of Wood Bros.
was direct or [1 Colo.App. 4] through the agency of the
intervenor, whether there was a consideration paid by Maynard
or not. In other words, if the fund in the hands of Bradbury
had been properly and wholly disposed of, and nothing
undisposed of remained with him, there was an end of the
process of garnishment; and the arrangement between Wood
Bros. and Maynard, in regard to the distribution of the fund,
was one in which appellant had no concern, and the same may
be said in regard to the question of whether a consideration
passed for a transfer of the claim of Wood Bros. to Maynard.
It was a matter resting entirely with them, which in no way
affected the right of appellant to reach the fund in the
hands of Bradbury. "The general rule is that the
garnishee is not chargeable unless the defendant could
recover of him what the plaintiff seeks to secure by
garnishment." Wap. Attachm. 202; Drake, Attachm. § 458;
Sickman v. Abernathy, 14 Colo. 184, 23 P. 447. Numerous cases
might be cited, if necessary, in support of this rule. There
is one notable exception to this general rule, where the
garnishee is in possession of effects of the defendant under
a fraudulent
[27 P. 169.]
transfer, but the principle is not involved in this case.
Hence, if the assignment of Anderson & Son was such as to
divest them of any interest in the fund remaining with
Bradbury, and there was no money in his hands that Anderson &
Son could reach by proceedings against him, there was nothing
appellant could reach by garnishment. The execution of the
instrument by which the assignment of Anderson & Son was made
was properly proved, and it was put in evidence. All the
evidence in regard to it was in support of its regularity; no
attempt was made to impeach it. The court was warranted in
finding that the assignors had transferred all their present
and future interest in the fund, and had no claim they could
assert against the garnishee; consequently, there was nothing
appellant could reach by attachment and garnishment. That a
debtor can prefer one creditor to the exclusion of others,
where no [1 Colo.App. 5] question of bona fides or fraud is
raised, is too well settled to need disposition. There being
nothing in the record to show what the amount of the fund for
distribution was, and that there was a balance remaining
after the payment of the two claims, it is to be presumed
that there was no surplus. The only question presented for
review by the assignment of error being as to the sufficiency
of the evidence to support the finding, the judgment is
affirmed.