FINANCE ACCEPTANCE v. HEINLE, 163 Colo. 35 (1967)

(428 P.2d 921)

No. 21618Supreme Court of Colorado.
Decided May 29, 1967. Rehearing denied July 24, 1967.

Garnishment proceeding seeking to subject funds on deposit with clerk of district court to payment of judgment. From judgment in favor of garnishee, error was brought.

Affirmed.

1. GARNISHMENT — Summons — Clerk of Court — Funds — Registry — Incompetent — Judgment — Propriety. Where plaintiff in error caused garnishee summons to be served upon clerk of district court in an effort to subject funds on deposit with latter to payment of a judgment entered against a certain mental incompetent, and trial court entered judgment in favor of garnishee holding that incompetent had no interest in funds on deposit in registry of court which could be reached by garnishee summons, held, reviewing court is in accord with propriety of trial court’s ruling.

Error to the District Court of Arapahoe County, Honorable William B. Naugle, Judge.

Richard M. Huckeby, for plaintiff in error.

Joseph W. Esch, for defendants in error.

In Department.

Opinion by MR. CHIEF JUSTICE MOORE.

Page 36

[1] Plaintiff in error caused a garnishee summons to be served upon Kenneth V. J. Heinle, clerk of the district court of Arapahoe county, in an effort to subject funds on deposit with the latter, in litigation pending in that court, to the payment of a judgment entered against one Leo R. Secord.

For answer to the garnishee summons Heinle asserted:

“I am not indebted to the above named [Leo R. Secord] at the present. There is $7,462.94 now being held in Arapahoe County District Court (case No. 16538 entitled ‘Emma W. Fulton, Administratrix of the Estate of William C. Fulton, deceased, Plaintiff, vs. Sadie H. Secord, Conservatrix of the Estate of Leo R. Secord (mental incompetent), Defendant.’ Receivership is still pending, and the court has not made final ruling as of this date.”

Plaintiff in error traversed this answer of Heinle. The trial court entered judgment in favor of the garnishee, holding that Leo R. Secord had no interest in the funds on deposit in the registry of the district court which could be reach by garnishee summons.

We have read the record, the briefs filed by counsel, and the authorities cited by them. We have also heard oral arguments in the matter. In addition, we have read authorities, not cited by counsel, which consider the rule relating to funds “in custodia legis.” A more detailed analysis of the facts and applicable rules of law which are well established would add nothing but length to this opinion, and serve no useful purpose.

The judgment of the trial court must be, and hereby is, affirmed.

MR. JUSTICE HODGES, MR. JUSTICE KELLEY and JOHN N. MABRY[*] concur.

Page 37