Brasher v. Holtz

Stallcup, 0. Upon this appeal it is assigned and argued that the said finding and judgment were contrary to the evidence, and that the court erred in the amount of damages allowed. The claimant, appellee, was the wife of the defendant in the original action, and while there were some facts in the evidence of the character to create a doubt of the bona fides of her claim of right to and ownership of the horse and buggy, yet there were many facts of the character to sustain the bona fides thereof sufficient to warrant the finding to that effect. Said section 88 provides as follows: “If any person other than the defendant in attachment claim to own or be entitled to the possession of the property attached, or any part of it, he may file hi's affidavit with the justice at any time before the trial of the action, setting forth his claim, and particularly specifying what property he claims. Upon such affidavit being filed the justice shall designate a time and place for the trial of the right of property, not more than five days from the date of the filing of such affidavit. Notice in writing shall be given to the attaching creditor and to the debtor, if such notice can be given, of the claim to be tried. In all cases where, upon trial of the issue thus made, the right of property is found to be in the claimant, the damages suffered by the claimant by reason of the levy shall be assessed by the court or jury, and the claimant shall recover his' costs of the attaching creditor. If the judgment he in [203] favor of the attaching creditor, the latter shall recover his costs of the claimant.” This is the extent of the provisions of said chapter on the subject, except that by section 36 of the same chapter it is provided that upon such trials either party shall have the right to have a jury of twelve. It appears from the record here brought under review that the said horse and buggy had been sold under the said execution issued by the justice, and the proceeds thereof applied towards the liquidation of said judgment against the said defendant, John Holtz. Where parties avail themselves of the provisions of this statute, and do not recover the property itself, the measure of damages is like that in trover for conversion, viz., the value of the property at the time of the seizure, with interest thereon. Schluter v. Jacobs, 10 Colo. 149; Garrett v. Wood, 3 Kan. 231; Polk v. Allen, 19 Mo. 468; Cassin v. Marshall, 18 Cal. 689. It appears from the evidence that there is nothing in this case to warrant special damages, nor the application of any other than the general rule stated. Meld, Dam. §§ 791-796. The damages, therefore, recoverable in this case are limited to the value of the horse and buggy at the time of the levy, with interest from that time. The judgment should be modified accordingly, and the appellant adjudged to pay the costs of this appeal. Rising and De France, 00., concur. Per Ouriam. For reasons stated in the foregoing opinion the judgment is reversed and remanded, with directions that a modified judgment be entered in accordance with the views expressed, appellant to pay the costs of the appeal. jReversed.