Goode v. Rio Grande Sampling Co. , 41 Colo. 169 ( 1907 )

Mr. Justice Bailey

delivered the opinion of the court:

On July 1st, 1901, the appellee in an action then commenced against N. J. Stumpf and Frank Myers, caused a writ of attachment to be issued and certain moneys in the hands of The First National Bank of Cripple Creek, said to belong to defendants in that action, to be garnished. Shortly after the garnishee summons was served appellant presented to the bank an assignment of account of Stumpf and Myers. The bank refused to acknowledge the assignment because it had been served with a garnishee summons. For some reason the action brought by appellee against Stumpf and Myers was not tried until the 12th day of November, 1902, at which time appellant filed his petition for intervention, claiming that the money had been assigned to him upon the first day of July, 1901. Judgment was taken against the defendants by plaintiff and the writ of attachment sustained. Plaintiff answered the petition of intervention, alleging that the assignment was made by the defendants, and accepted by the intervener under the advice of an attorney of defendants and tlie intervener for the use and benefit of the defendants and for the purpose of attempting hy fraudulent and pretended assignment to defeat the rights of the plaintiff as well as the lien of the judgment and garnishment, and to obtain money for the use and benefit of defendants, and was not made in good faith. The matter went to the trial court on the plea of intervention and the issue tendered hy this defense. The issues were found for plaintiff, and the intervener appealed.

The only question involved in this action is one of fact. It was found by the court adversely to the intervener upon competent testimony and the judgment must he- affirmed. It appears from the testimony that the defendants in the attachment suit had been arrested and were in the custody of the sheriff. They were desirous of securing some person to sign as surety their appearance bond. They made a check to the intervener for one thousand dollars. This check was to have been delivered to Mr. Burnside upon condition that he would sign the bond. The intervener and his counsel called upon Mr. Burnside, and he refused to sign the bond because he had been informed that the plaintiff was going to attach the money in the hank. Defendants then, upon the advice of their counsel, made the following assignment to the intervener :

“Cripple Creek, Colo., June 29, 1901.

“For and in consideration of-the sum of fifty dollars to us in hand paid hy George Goode and the furnishing of bond and employing an attorney and other services to he performed by the said George Goode, we hereby sell, assign and transfer to the said George Goode the sum of one thousand dollars now on deposit in the First National Bank of Cripple Creek, Colorado.”

This assignment was not made until the parties had learned that plaintiff was preparing to attach the money. The intervener did not furnish the bond as required by the assignment, and paid out, in addition to the fifty dollars recited in the assignment, the sum of one hundred dollars to the attorney, making a total expenditure of one hundred fifty dollars as a consideration for the assignment of one thousand dollars. Under these conditions the trial court was justified in finding the issues for the plaintiff and the judgment will not be disturbed. It will therefore he affirmed. Affirmed.

Chief Justice Steele and Mr. Justice Goddard concur. ___