Opinion
No. 18,849.
Decided February 2, 1959. Rehearing denied February 24, 1959.
Motion by wife in action against husband after judgment to restrain levy of execution on automobile. Motion granted.
Reversed.
1. APPEAL AND ERROR — Rules — Matters Not Presented in Trial Court. Matters not presented to the trial court by pleading, testimony or argument, and no responsive pleading filed pursuant to Rule 8, R.C.P. Colo., will not be considered by the Supreme Court on review.
2. EXECUTION — Levy — Interloper — Intervention — Rules. A wife, complete stranger to the action, who without leave of court files a motion to restrain levy of execution on an automobile, and who did not file a petition to intervene in the action pursuant to Rule 24, R.C.P. Colo., was a mere interloper who acquired no rights by such unauthorized action, unless objections thereto were waived.
3. INJUNCTION — Remedy at Law — Replevin. A mandatory injunction directing the sheriff to deliver an automobile, taken in execution, to a party based upon a motion therefor by a stranger to the action, where an adequate remedy at law was available to such party by replevin, was error.
4. EXECUTION — Sheriff — Notice. Where a sheriff in possession of an automobile under execution, had no notice of the pendency of a petition to restrain proceedings under such execution; did not appear in the action and is ordered to deliver the automobile to the petitioner, such orders, being without process or notice, were without validity.
5. JUDGMENT — Judges — Hearing — Findings — Orders. Where the record shows that a hearing was held before a judge of the district court, and the judgment presented for review entered by another judge of the same court, the better practice is that the judge hearing the evidence make the findings and enter the judgment, rather than a judge who is a total stranger to the case.
Error to the District Court of the City and County of Denver, Hon. Joseph M. McDonald, Hon. Edward J. Keating, Judges.
Messrs. GELT GROSSMAN, Mr. PERCY S. MORRIS, for plaintiff in error.
Mr. JOHN F. MUELLER, for defendant in error.
HEREIN we refer to the plaintiff in error as Hercules, to defendant in error as the wife, and to Francis H. Smith as the husband.
On April 14, 1958, Hercules secured a judgment against the husband for the sum of $3532.95. This judgment became final and, pursuant to execution issued thereon, Edward O. Geer, as manager of safety and ex-officio sheriff of the City and County of Denver, on July 7, 1958, seized a certain Lincoln Capri automobile. Promptly after the seizure, the wife filed her verified "Motion for Restraining Order" in the case in which the above mentioned judgment was entered, wherein she alleged that she was the owner of the automobile and had the entire legal and equitable ownership thereof. She attached to her motion a "Certificate of Title to a Motor Vehicle" issued by the motor vehicle division of the department of revenue, dated November 8, 1957, which shows transfer of title of the Lincoln Capri automobile from the husband to the wife as of October 31, 1957. She further alleged that she was in no manner indebted to Hercules; that the judgment of Hercules is against the husband only, and the seizure by Geer unlawful. She asked that an order be entered restraining Geer from proceeding further in execution on the automobile and restraining him from retaining possession thereof. This so-called motion, with the exception of failure to allege a demand, contained all of the necessary allegations to constitute a complaint in replevin against Geer for possession of the automobiles. There is nothing in the record to indicate that Geer was ever served with any process or had knowledge of the pendency of the motion or the hearing thereon. Geer filed no responsive pleading.
Hearing on this motion was had before the Honorable Joseph M. McDonald on July 23, 1958, at which hearing sworn testimony was presented. At the close of the testimony Judge McDonald stated:
"There is no evidence at all here to contradict Mrs. Smith as to whether or not this car was her property.
* * *
"If you [Hercules] are to prevail here, you must ask this Court to disbelieve everything the petitioner testified to. I have no reason to disbelieve it. Accordingly, I am going to grant the motion."
Thereafter, and on July 29, 1958, a formal and final order, signed by the Honorable Edward J. Keating, was entered nunc pro tunc as of July 23, 1958 (the date of hearing before McDonald), in which it is recited that:
"* * * the Court having read said motion and the file in this cause, and after having heard the sworn testimony offered by the parties and the statements of counsel, and being now fully advised, DOTH FIND:
* * *
"That Rosabelle L. Smith [the wife] * * * is the lawful owner of said 1955 Lincoln Capri * * * and is entitled to the immediate possession of the same." (Emphasis supplied.)
The order provides:
"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE COURT:
"1. That Edward O. Geer, as Manager of Safety and Excise and Ex-Officio Sheriff of the City and County of Denver, shall forthwith deliver possession of a 1955 Lincoln Capri 4 door sedan automobile, manufacturer's No. 55 WA 19339H bearing 1958 Colorado license No. DM 827, unto Rosabelle L. Smith, and shall discontinue any proceeding under execution in this cause for the sale of said automobile. * * *." (Emphasis supplied.)
Hercules (not Geer) seeks review and reversal of this final order.
Counsel here urge that the transfer from the husband to the wife was in fraud of creditors and therefore void. This matter we do not consider, for the reason that there is nothing in the record before us to indicate that any such contention was presented to the trial court by pleading, testimony or argument.
Rule 8, R.C.P. Colo., provides:
"(b) A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments of the adverse party. * * *.
"(c) In pleading to a preceding pleading, a party shall set forth affirmatively accord * * * failure of consideration, fraud, illegality * * * statute of frauds * * * and any other matter constituting an avoidance or affirmative defense. * * *." (Emphasis supplied.)
No such responsive pleading was filed in this case, hence there was no such issue presented for determination.
We find no sanction in our rules of procedure, or the common law, for the proceedings had in the trial court.
The wife is a complete stranger in the case; she appeared and filed her motion without leave of court. Though she may have been entitled to intervene (a question which we do not determine), pursuant to Rule 24 (a) (3), R.C.P. Colo., she should have made timely application for permission to intervene. She comes within the following language from 67 C.J.S. 1001, § 64:
"* * * one who attempts to intervene without bringing himself within, or complying with, the provisions of the statute is a mere interloper who acquires no rights by his unauthorized interference unless objections thereto are waived * * *."
In her motion she sought equitable relief, a restraining order, and the trial court granted the relief requested and went a step farther and entered a mandatory injunction directing Geer to deliver the automobile to the wife — all of this when there was available to the wife a speedy, complete and adequate remedy at law — an action in replevin. There is neither allegation nor proof that such remedy was not available to plaintiff.
"The rule that an injunction will not be granted where the remedy at law for the injury complained of is full, adequate and complete, discussed in the C.J.S. title Injunctions § 25, also 32 C.J. p. 57 note 34, is generally applied to suits for an injunction against a levy or sale under an execution; if there is an adequate remedy at law an injunction will not be granted, while it there is not an adequate remedy at law an injunction will ordinarily be granted. If the remedy at law is doubtful and obscure, an injunction will be granted." — 33 C.J.S. 349, 350, § 151.
"The general rule that an injunction will not be granted where there is an adequate remedy at law has been applied where there was an adequate remedy by ejectment, replevin, trespass, * * *." (Emphasis supplied.) — 43 C.J.S. 454, § 25.
The record does not show that Geer ever received any notice of the pendency of the wife's petition; he never appeared in person or by counsel below, and understandably filed no responsive pleading; he does not appear here in person or by counsel, and yet he has been ordered not to proceed with the execution; he has been ordered to deliver the automobile to the wife. Such orders without process or notice are without validity.
The Reporter's transcript and the record show that the hearing on July 23, 1958, was held before the Honorable Joseph M. McDonald and, as pointed out above, he made the statement that he was going to grant the wife's motion. The judgment here for review is signed by the Honorable Edward J. Keating, and in the judgment it is recited:
"* * * and the Court having read said motion and the file in this cause, and after having heard the sworn testimony offered by the parties and the statements of counsel, and now being fully advised, DOTH FIND: * * *."
We feel that better practice dictates that the judge hearing the evidence make the findings and enter the judgment, rather than having the findings and judgment entered by a judge who is a total stranger in the case.
Finding as we do, from the record before us, that (1) the intervention was without authority; (2) that subsequent proceedings were without notice, and (3) that the judgment to be reviewed is signed by a judge who never participated in the case, we feel constrained to reserve the judgment entered herein.
The judgment is reversed with directions that the final order entered July 29, 1958, nunc pro tunc as of July 23, 1958, be vacated and set aside, the "Motion for Restraining Order" stricken, and the interested parties permitted to take such further steps as they may deem advisable, to the end that the respective rights of the parties may be determined and without prejudice by reason of proceedings had herein.
MR. JUSTICE FRANTZ and MR. JUSTICE DOYLE dissent.