Opinion
No. 12,364.
Decided October 14, 1929. Rehearing denied November 4, 1929.
Attachment proceeding. Judgment against garnishee.
Affirmed.
1. APPEAL AND ERROR — Bill of Exceptions. Unless affidavits, transcripts of judgments and depositions upon which a motion to file an amended answer in garnishment proceedings are based, are made a part of the record by bill of exceptions, they will not be considered on review.
Error to the District Court of the City and County of Denver, Hon. Frank McDonough, Sr., Judge.
Mr. S. M. TRUE, for plaintiff in error.
Messrs. BLOUNT, SILVERSTEIN ROSNER, Mr. LOWELL WHITE, Mr. F. L. GRANT, for defendants in error.
THE George Tritch Hardware Company, one of the defendants in error, sued Peter Fox on a money demand, and caused attachment to issue. Other creditors, also defendants in error, intervened and procured attachments. Final judgments against Fox followed and the attachments were sustained. Garnishee summons was served on Royal Exchange Assurance, the plaintiff in error. It answered under oath and admitted that it owed Fox the sum of $3,173.48. It later asked leave to withdraw the answer, and to file an amended and substituted answer denying the debt, based on alleged discovery of fraud. The court denied the request and on motion ordered judgment against the garnishee on its admission of liability of Fox. The garnishee assigns error and asks for a supersedeas.
1. There are three assignments of error, but they all go to one point, the refusal to allow the amendment. The application therefor was based on affidavits; also certified copies of transcripts of judgments against Fox rendered many years before in another court, and a purported deposition, which does not appear to have been taken on notice or offered in evidence. None of these are a part of the record unless made so by bill of exceptions, but there is no such bill, nor the slightest attempt thereat. It precludes the consideration of the matters which the garnishee values, and leaves the record disclosing a valid judgment against the garnishee, based on its answer under oath. It calls for an affirmance. Concerning the necessity for a bill of exceptions, see Weir v. Campbell, 67 Colo. 531, 186 Pac. 526; Horne v. Redman, 69 Colo. 214, 193 Pac. 548; Phoenix Indemnity Co. v. Greger, 39 Colo. 193, 88 Pac. 1066; Lockard v. Lockard, 74 Colo. 583, 223 Pac. 28; Code 1921, § 420; Supreme Court Rule 10.
Judgment affirmed.
MR. CHIEF JUSTICE WHITFORD, MR. JUSTICE CAMPBELL and MR. JUSTICE ALTER concur.