REPORTS

OF THE DECISIONS

OF THE

COURT OF APPEALS

OF THE

STATE OF COLORADO.

APRIL TERM, 1891.

M. J. MARKS, APPELLANT, v. C. A. ANDERSON ET AL.,
APPELLEES.

1. ASSIGNMENT OF A SPECIFIC FUND TO Preferred CREDITORS.--The assignment of a fund by an insolvent debtor to one of his creditors, made for the benefit of the assignee and a certain other creditor, is not invalidated by the subsequent act of the latter creditor in transferring his claim for collection and without consideration to the assignee, or by the acts of the two favored creditors in agreeing upon a ratable distribution of the fund between them, it not being sufficient to pay their claims in full.

2. ATTEMPT TO REACH ASSIGNED FUND IN HANDS OF HOLDER. — In proceedings brought by a non-preferred creditor of an insolvent debtor to reach a fund due the debtor in the hands of the holder thereof, but which had been assigned by the debtor to certain preferred creditors, the issues raised upon the intervention of the assignee being the validity of the assignment, and whether a surplus existed after satisfaction of the preferred claims, in the absence of evidence to establish affirmatively either issue, the court was justified in ordering the delivery of the fund to the assignee.

3. LIABILITY OF GARNISHEE.-Generally a garnishee is not chargeable, unless the defendant could recover of him, by an action instituted for that purpose, what the plaintiff seeks to secure by garnishment proceedings.

VOL. I-1

(1)

Appeal from District Court of Chaffee County

Mr. G. K. HARTENSTEIN, for appellant.

Mr. C. S. LIBBY, for appellee.

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 Maynard 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 appellee Bradbury.

On the 3d of June, 1887, Bradbury was a contractor on the Midland Railroad. Anderson & Son were sub-contractors under Bradbury, and were indebted to the firm of Wood Brothers 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 sub-contract 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

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