C.r.c.p. 69
C.r.c.p. 69
Annotation I. General Consideration. Law reviews. For article, "Supplementary Proceedings in Enforcement of Judgments", see 27 Dicta 128 (1950). For article "One Year Review of Civil Procedure", see 35 Dicta 3 (1958). Annotator's note. Since this rule is similar to § 265 et seq. of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing those sections have been included in the annotations to this rule. This rule assumes the existence of valid judgment obtained over one properly made a party to the suit on the debt by service of process. Havens v. Hardesty, 43 Colo. App. 162, 600 P.2d 116 (1979). This rule deals with supplemental proceedings available to a judgment creditor which enable him to enforce the collection of a judgment. Hudson v. Am. Founders Life Ins. Co., 160 Colo. 420, 417 P.2d 772 (1966). Supplemental proceedings are for the purpose of making effectual a judgment rendered in the main or original action. Sweeney v. Cregan, 89 Colo. 94, 299 P. 1058 (1931). Proceedings also for purpose of discovering what property is available to satisfy such. The purpose of supplementary proceedings in aid of execution is to discover what property the judgment debtor has that is subject to execution and to apply to the satisfaction of the judgment any such property that is in the hands of such debtor or any other person as well as due to the judgment debtor. Walker v. Staley, 89 Colo. 292, 1 P.2d 924 (1931). Original proceeding considered as still pending. Jurisdiction of the defendant having been acquired in the original proceeding, that action is considered as still pending until the judgment rendered thereon is fully discharged. Hexter v. Clifford, 5 Colo. 168 (1879); Sweeney v. Cregan, 89 Colo. 94, 299 P. 1058 (1931). This rule authorizes the court to act based upon its continuing jurisdiction over the defendant named in the underlying action. Havens v. Hardesty, 43 Colo. App. 162, 600 P.2d 116 (1979). These proceedings are ancillary and auxiliary to the original action. Sweeney v. Cregan, 89 Colo. 94, 299 P. 1058 (1931). Further proceedings to enforce a judgment should be presented to the court that entered it. Urbancich v. Mayberry, 124 Colo. 311, 236 P.2d 535 (1951). A court does not have the authority, under this rule 69 or otherwise, to prevent the sale of property under execution to satisfy a judgment where the property in question is not included within any class of assets exempt from execution under the provisions of any exemption law. Jones v. District Court, 135 Colo. 468, 312 P.2d 503 (1957). Levy upon property. A sheriff's sale of property to which defendant had no title and satisfaction based thereon were void and defendant's subsequent pledge of stock to secure the same judgment was valid. Ada Mechanical Servs., Inc., v. Goehring, 707 P.2d 1034 (Colo. App. 1985). Applied in People v. Barbour, 639 P.2d 1065 (Colo. 1982); Lobb v. Hodges, 641 P.2d 310 (Colo. App. 1982); First Nat'l Bank v. District Court, 652 P.2d 613 (Colo. 1982). II. Proceedings for Costs. Where both parties each have against the other a right of execution in the same case, the costs in the supreme court may be offset against those in the court below. Wallace Plumbing Co. v. Dillon, 73 Colo. 10, 213 P. 130 (1922) (decided under § 461 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941). III. Subpoena for Appearance of Judgment Debtor. Law reviews. For article, "Discoverability of Insurance Limits", see 40 Den. L. Ctr. J. 272 (1963). Annotator's note. Since section (d) of this rule is similar to §§ 265 and 266 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing those sections have been included in the annotations to this rule. Section (d) is constitutional. Sweeney v. Cregan, 89 Colo. 94, 299 P. 1058 (1931). Even if defendant is deprived of his constitutional right against self-incrimination, it does not follow that this rule requiring his presence in court is unconstitutional and void. Sweeney v. Cregan, 89 Colo. 94, 299 P. 1058 (1931). Section (d) does not purport to grant a judgment creditor such a right to require his debtor to answer questions which might subject the latter to a criminal prosecution. Sweeney v. Cregan, 89 Colo. 94, 299 P. 1058 (1931). In addition, it must be presumed that every constitutional right of the debtor will be respected and safeguarded. Sweeney v. Cregan, 89 Colo. 94, 299 P. 1058 (1931). Production of documents not privileged under fifth amendment. Judgment debtor can be required to produce automobile titles and recorded deeds to real estate, determined to be within the public domain, as well as tax returns that he filed, because there is no fifth amendment privilege as to such documents. Griffin v. Western Realty Sales Corp., 665 P.2d 1031 (Colo. App. 1983). Section (d) is a method of discovery. Hudson v. Am. Founders Life Ins. Co., 160 Colo. 420, 417 P.2d 772 (1966). It permits the judgment creditor to require a judgment debtor to appear before the court to answer questions concerning his assets. Hudson v. Am. Founders Life Ins. Co., 160 Colo. 420, 417 P.2d 772 (1966). Section (d) takes the place of former bill of discovery. These "supplemental proceedings" are chiefly directed to discovery, and in this respect, they are to be regarded as taking the place of the former bill of discovery. Allen v. Tritch, 5 Colo. 222 (1880). Service on attorney. Service on an attorney in accordance with the provisions of C.R.C.P. 5(b), does not satisfy the requirements of section (d). Stubblefield v. District Court, 198 Colo. 569, 603 P.2d 559 (1979). Service of citation to appear under section (d) is proper if it complies with the provisions of C.R.C.P. (4)(e)(1). Stubblefield v. District Court, 198 Colo. 569, 603 P.2d 559 (1979). Service on registered agent. Personal delivery of interrogatories on foreign corporation's registered agent constitutes effective service. Isis Litig., L.L.C., v. Svensk Filmindustri, 170 P.3d 742 (Colo. App. 2007). A defendant is clearly guilty of contempt in refusing to be sworn and prematurely refusing to answer question to be propounded. Sweeney v. Cregan, 89 Colo. 94, 299 P. 1058 (1931). IV. Subpoena for Appearance of Debtor of Judgment Debtor. Annotator's note. Since section (e) of this rule is similar to § 268 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Section (e) is a method of discovery. Hudson v. Am. Founders Life Ins. Co., 160 Colo. 420, 417 P.2d 772 (1966). It permits the court, upon proper proof, to examine a third person who is believed to hold property of, or owe a debt to the judgment debtor. Hudson v. Am. Founders Life Ins. Co., 160 Colo. 420, 417 P.2d 772 (1966). Proceedings to compel the application of money or property in the hands of other parties to the satisfaction of the judgment are proceedings in the original action, and no notice to defendant is necessary. Hexter v. Clifford, 5 Colo. 168 (1879). Other parties are entitled to their day in court. In supplementary proceedings in aid of execution, a court has no power to order a receiver to take possession of and sell property belonging to other parties without according them their day in court. Walker v. Staley, 89 Colo. 292, 1 P.2d 924 (1931). Notice, affidavit, or other showing of indebtedness waived by insurers. In an action for damages where the parties and insurers stipulate for entry of judgment and for determination by the court of the issue of liability as between the insurers and provide for hearing in accordance with this rule, the trial court has jurisdiction to determine such issue, the stipulation being a waiver of notice, affidavit, or other showing of indebtedness pursuant to this rule. Traders & Gen. Ins. Co. v. Pioneer Mut. Comp. Co., 127 Colo. 516, 258 P.2d 776 (1953). Where person, not a party to original action, appears pursuant to a subpoena under subdivision (e) and denies that he is obligated to or in possession of any property of a judgment debtor, trial court is precluded from proceeding further in a proceeding under this rule, and creditor's sole remedy is a creditor's bill. Equisearch, Inc. v. Lopez, 722 P.2d 426 (Colo. App. 1986) (decided under former rule); In re Livingston, 999 F. Supp. 1413 (D. Colo. 1998). V. Order to Apply Property on Judgment; Contempt. Law reviews. For article, "The Enforcement of Divorce Decrees in Colorado", see 21 Rocky Mt. L. Rev. 364 (1949). For comment on Urbancich v. Mayberry, appearing below, see 24 Rocky Mt. L. Rev. 259 (1952). For article, "The Nuts and Bolts of Collecting Support", see 19 Colo. Law. 1595 (1990). Annotator's note. Since section (f) of this rule is similar to §§ 270 and 271 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing those sections have been included in the annotations to this rule. Section (f) is an enforcement provision. Hudson v. Am. Founders Life Ins. Co., 160 Colo. 420, 417 P.2d 772 (1966). It provides that, if certain prerequisites are met, the trial court may order property applied to the judgment. Hudson v. Am. Founders Life Ins. Co., 160 Colo. 420, 417 P.2d 772 (1966). Including property held by court. Where a judgment debtor is "discharged" on a prior occasion from a citation issued pursuant to section (d) of this rule, such fact does not bar a judgment creditor from seeking to obtain, under the provisions of this section (f), known property held by a third person, including the court. Hudson v. Am. Founders Life Ins. Co., 160 Colo. 420, 417 P.2d 772 (1966). It is not, however, adapted to reach disputed property of a judgment debtor, since no contested title to property can be determined. Allen v. Tritch, 5 Colo. 222 (1880); Walker v. Staley, 89 Colo. 292, 1 P.2d 924 (1931). Where title to real property claimed to belong to a judgment debtor stands in the name of another, a creditor's suit is the proper proceeding to subject the property to the satisfaction of a judgment, and not supplementary proceedings in aid of execution. Walker v. Staley, 89 Colo. 292, 1 P.2d 924 (1931). This rule does not contemplate that real property may be sold under an order of court made in a supplementary proceeding, even when title stands in the name of the judgment debtor. Walker v. Staley, 89 Colo. 292, 1 P.2d 924 (1931). Rather, in such case, the judgment creditor may cause execution to be levied upon the property and it requires no order of court. Walker v. Staley, 89 Colo. 292, 1 P.2d 924 (1931). The fact that the property sought is a trust fund interposes no obstacle in subjecting it to the satisfaction of a judgment when the fund was created by the debtor himself and the fund sought to be reached has risen from the sale of his own property. Hexter v. Clifford, 5 Colo. 168 (1879). Contingent fees not yet earned cannot be reached in proceedings supplementary to execution. Walker v. Staley, 89 Colo. 292, 1 P.2d 924 (1931). Remedy of contempt is specifically authorized to be exercised by the court which pronounced the judgment sought to be collected and not any other court. Urbancich v. Mayberry, 124 Colo. 311, 236 P.2d 535 (1951). VI. Witnesses. Judgment debtor not within purview of C.R.C.P. 45. Although a judgment debtor may testify as a witness in a hearing under this rule, he is not a witness within the purview of C.R.C.P. 45 for the purposes of service of process. Stubblefield v. District Court, 198 Colo. 569, 603 P.2d 559 (1979).
For sale of perishable property, see C.R.C.P. 102(q); for judgments and executions, see articles 51 to 64 of title 13, C.R.S.; for homestead exemptions, see part 2 of article 41 of title 38, C.R.S.; for certificates in name of officer, see C.R.C.P. 110(c); for civil contempt, see C.R.C.P. 107; for subpoena for attendance of witnesses, see C.R.C.P. 45(a); for taking depositions, see C.R.C.P. 26 to 37.