First Nat. Bank v. Leppel , 9 Colo. 594 ( 1886 )

Elbert, J.

It does not appear that the bill of exceptions in this case contains all the evidence that was admitted on the trial in the court below. We cannot, therefore, review the judgment on the evidence. It is proper for us to say, however, that, from the evidence before us, there does not appear to have been much merit in the defense interposed by the defendant corporation. If the note in question was made payable to Isidore Heller, and indorsed by him to the plaintiffs, with intent to defraud the creditors of David Heller, as alleged, it did not concern the defendant corporation, unless it was a creditor of David Heller.

Nor does it appear that the defendant corporation was in anywise charged with liability in respect of the note in question by the garnishee proceedings in the case of Zollars v. David Heller et al. The note was executed by Clark to Isidore Heller, and by him assigned to the plaintiffs, who deposited it with the defendant for collection. David Heller, the defendant in the attachment suit, had no apparent connection with, or ownership of, it. Under these circumstances, if the note was in fact the property of David Heller, and if it could be reached at all by garnishment, in order to charge the defendant, a special notice was requisite, specifying the note in question as the property of David Heller, the defendant in the attachment suit. The general notice of garnishment required by the statute (and none other appears to have been served) would not require the garnishee to hold the property of third persons as subject to the levy. It does not appear that the proceedings against the defendant corporation as garnishee were ever pursued to judgment. The judgment of the court below is affirmed.

Affirmed.