Royal Exchange Assurance v. George Tritch Hardware Co.

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] 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 Weirv. Campbell, 67 Colo. 531, 186 P. 526; Horne v. Redman,69 Colo. 214, 193 P. 548; Phoenix Indemnity Co. v. Greger, 39 Colo. 193, 88 P. 1066; Lockard v. Lockard,74 Colo. 583, 223 P. 28; Code 1921, § 420; Supreme Court Rule 10.

Judgment affirmed.

MR. CHIEF JUSTICE WHITFORD, MR. JUSTICE CAMPBELL and MR. JUSTICE ALTER concur.