Cobb v. Aiello

Opinion by Mr. Justice Allen: The defendants in error are intervenors in a certain action in replevin wherein the plaintiff in error is plaintiff. In that action the plaintiff secured, by a writ of replevin, the possession of certain personal property, claiming a lien thereon by virtue of a chattel mortgage, recorded May 23, 1917. After the institution of the action, the defendants in error filed a petition in intervention, to which the plaintiff interposed a demurrer. The court overruled tlie demurrer, and the plaintiff electing to stand thereon, a judgment was rendered in favor of the intervenors. The plaintiff brings the cause here for review. The petition shows that the intervenors are judgment creditors of the defendant in the action in replevin, having obtained their judgment on September 2, 1919, the same day on which the petition was filed. The defendants in error base their right to intervention, and claim a prior lien upon the property in question, upon the theory that the plaintiff’s chattel mortgage was not valid, as against them, because no .sworn statement had ever been filed by the plaintiff mortgagee pursuant to the provisions of section 515 K. S’. 1908, a statute which has been repealed but which was in effect at the time the -chattel mortgage was recorded. ... In this case the petition in intervention was filed in the same action in replevin, and was interposed on the same grounds, alleging substantially the same facts, as the petition mentioned in the opinion of this court in tfie case of Cobb v. The International State Bank, 67 Colo. 488. [534] The questions presented for our determination, and the contentions of the respective parties* are the same in each case. For reasons stated in the opinion in Case No. 9717, the trial court erred in overruling the demurrer. The judgment is therefore reversed, with directions to sustain the plaintiff’s demurrer to the interveners’ petition, and to dismiss the intervention. Reversed. Chief Justice Garrigues and Mr. Justice Bailey concur.