
    Schuster et al. v. Rader, Sheriff, et al.
    Attachment — Judgment by Confession — Partnership and Indi- , vidual Creditors.
    1. "When a Writ of Attachment May Issue.— While tlie amendment of 2885 to section 39 of the code was in force, as well as before and since that time, a writ of attachment might issue at the time of issuing the summons. The words, “ in an action,” in section 91 of the code, are not used to denote an action pending, but as introductory to the words describing the kind of action in which a writ of attachment may issue.
    2. Judgments in Open Court and Judgments by Confession — Time of Taking Effect.— Where a judgment is pronounced by the court in open session, it takes effect from the time it is so rendered, though the act of entering the same in the record may be delayed; but a judgment by confession takes effect from the time it is actually entered in the record, as provided by the statute.
    
      3. When Enforcement of Judgment by Confession May be Enjoined.— Where a judgment has been entered by confession, without action, unless the statute authorizing such entry has been substantially complied with the enforcement of the judgment may be enjoined, upon principles of equity, at the suit of a third party prejudiced thereby; also, if a judgment by confession be not entered in fact substantially as required by the statute, an execution in advance of such entry will be postponed in favor of a junior execution or attachment based upon valid proceedings.
    4. Same — Strangers Not Concluded by Date or Recital of Such Judgment — Evidence Admissible to Show Fraud. — Strangers to a judgment by confession are not concluded by its date nor by its recitals. They may, upon a complaint setting forth specific averments of fraud, introduce oral, as well as documentary and record, evidence.
    5. Rights of Partnership as against Individual Creditors in Equity.— In equity partnership creditors are entitled to the partnership property in preference to the creditors of one or more of the individual partners.
    6. Rule at Common Law.— A mere creditor at large could not, at common law, enforce such equity without first obtaining a lien by judgment, execution and levy.
    
      7. Levy of a Valid Attachment Preserves Property until Cause Adjudicated.— A partnership creditor, having levied a valid attachment upon the property of an insolvent firm, should be permitted to have such property, or the fruits thereof, preserved until his cause can be adjudicated.
    
      Appeal from District Court of Fremont County.
    
    Mr. Augustus Macon, for appellants.
    Messrs. Waldo & Baker, for appellees.
   Mr. Justice Elliott

delivered the opinion of the court.

On the 6th of October, 1885, Thomas M. Richards and Gabriel F. Rule executed and delivered a statement in writing, duly verified, authorizing the entry of judgment against them in the district court of Fremont county, for the sum of $891,60, in favor of the Struby-Estabrook Mercantile Company, substantially as provided by the Code of Civil Procedure then in force. The statement was filed with the clerk of said court, and by him in-. dorsed on the same day, as follows: “ Judgment entered this 6th day of October, 1885. Zeph T. Hill, Clerk.” An execution was immediately issued thereon, as though a judgment had been regularly indorsed on said statement, and entered in the judgment book in compliance with the provisions of the code; but, in fact, no judgment was actually indorsed on the statement until a day or more after the issuance of the execution, and no judgment was entered in the record until October 10, 1885. On October 1, 1885, the execution thus issued was levied upon a certain stock of merchandise belonging to Eichards & Eule, as copartners; but neither the statement nor judgment, afterwards indorsed and entered as aforesaid, nor the execution issued thereon, show the said Thomas M. Eichards and Gabriel F. Eule to be copartners, nor the indebtedness upon which the confession was founded to be a partnership indebtedness.

On October 10, 1885, appellants commenced suit by attachment in the county court of Fremont county against Thomas M. Eichards and Gabriel F. Eule, as copartners, for the sum of $1,135, and levied their writ upon the same stock of merchandise of Eichards & Eule, copartners as aforesaid, which had been taken in execution by appellees. Thereupon appellants brought this action in the district court against Sheriff Eader and the Struby-Estabroók Company, to restrain the sale of said merchandise under their execution, alleging that the levy of the execution was fraudulent as to appellants by reason of the matters aforesaid, and claiming that said merchandise, being the copartnership property of Eichards & Eule as aforesaid, had become subject to the levy of appellants’ writ of attachment; and that said firm had no other property out of ■ which appellants could make their debt or any part thereof.

On the trial oral evidence was offered by appellants, showing that October 6, 1885, was the true date of filing the statement on which the Struby-Estabrook Company based their judgment by confession; and also showing that the judgment, though dated “October 6, 1885,” was not actually indorsed on the statement and entered in the recoi’ds of the court until several days thereafter. Oral evidence was also offered by appellees to show that the indebtedness mentioned in the statement, authorizing the confession of judgment, was the partnership indebtedness of said Richards & Rule. The offer of said oral evidence was objected to by the parties respectively. The trial being to the court, the evidence was admitted, subject to the consideration of its competency on the final argument, at which time all such oral evidence was excluded; to which ruling each of the parties respectively excepted. On the trial it was further shown that appellants obtained judgment in their attachment suit for $1,131.50; and also that there was no other property of said firm of Richards & Rule than the merchandise so levied on by the sheriff out of which appellants could satisfy their judgment.

The finding and judgment of the court being in favor of appellees, appellants bring the case here, and ask for a reversal on the ground, inter alia, that the court below erred in rejecting the oral evidence showing the true date of the entry of the judgment by confession, and that the execution was issued thereon prior. to such entry, and in rendering judgment for appellees instead of appellants.

An objection is made -by counsel for appellees, arguendo, to the effect that the levy of the writ of attachment by appellants upon the property in controversy was invalid, because no action had been commenced in the county court at the time of the issuance and levy of said writ. The writ was issued and served on the 10th day of October, but the summons was not served until October 12th. By an amendment to section 29 of the code, passed in 1885 (but modified in 1887), it was provided that “civil actions shall be commenced by the service of a summons.” By section 91 of the original code it was provided that “ the plaintiff, at the time of issuing the summons in an action on contract, express or implied,’ or at any time afterwards before judgment, may have the property of the defendant attached,” etc. Construing these two provisions together, it was often urged, during the time the amendment of 1885 was in force, that there could be no valid attachment except in an action; that an action necessarily implied an action pending; that there could be , no action pending unless the action were fix-st commenced; that the action could be commenced only by the “ service of a summons; ” and hence that no attachment writ could legally issue until after the service of the summons. Two cases (Kerr v. Mount, 28 N. Y. 659, and Webb v. Bailey, 54 N. Y. 164) are cited as tending to sustain this x-easoxxixxg, though we think they fall short of it; Without going into an analysis of the cases bearing upon the question, we are clearly of the opinion that the words, “in an action,” used in section 91 of the code, supra, are not used to denote an action pending, but ratlier as introductory to the words describing the kixxd of actioxx, to wit, “axx action oxx coxxtx-act, express or implied,” ixx which the plaintiff may have the property of the defendaxxt attached. So the woi'ds, “at the time of issuxxxg the summoxxs,” in section 91, xneaxxt precisely what they said as to the time whexx the writ of attachmexxt xnight issue, while the amexxdmexxt to sectioxx 29 was in fox-ce, as well as before axxd since that time. Whexx we consider that the chief utility of axx attachxnexxt consists in the writ beixxg served ixx time to prevent a delinquent debtor from placing his property beyoxxd the reach of the cx-editor, it would be unfortunate, ixxdeed, if the writ could xxot issue until the debtor should have notice of the proceedings by the service of the summoxxs. Raynolds v. Ray, 12 Colo. 108.

Discriminating law-wx-iters speak of judgments by confession as being “entered,” while other judgments are spokeii of as being “given” or “rendered.” Such is the language of the code. The distinction is significant. At common law the giving of judgment was a judicial act, to be performed only by the court sitting at stated times and places. The matter in controversy having been duly set forth in the' pleadings, the evidence was taken, or the facts agreed upon, and the verdict found. The whole record was then duly submitted to the court, and upon due consideration judgment was -returned or rendered thereon by the court, as the law of the case required. Hence Blackstone’s concise definition, “Judgments are the sentence of the law pronounced by the court upon the matter contained in the record.” The judgment having been so pronounced in open court, the act of entering the same in the record by the clerk was purely ministerial, and was not essential to the existence of the judgment so rendered, though the entry was necessary to preserve it, and, as a matter of proof, was the best evidence of its existence. The judgment derived its force and effect from the fact that it had been so considered, adjudged and decreed by the court; and it became effective from the time of such adjudication and promulgation in open court, though the ministerial act of entering the same in the records of the court might be delayed. 3 Bl. Comm. 395; Freem. Judgm. § 40; Freem. Ex’ns, § 18; Filley v. Cody, 4 Colo. 109; Sieber v. Frink, 7 Colo. 148; Gray v. Palmer, 28 Cal. 416.

Under statutes authorizing judgments by confession in vacation through the agency of the clerk, there being no judicial determination of the controversy, the act of giving judgment in such cases is called the “entering,” rather than the “rendering,” of judgment. Nevertheless, judgments by confession are the sentence of the law upon the matter contained in the record, the matter being supposed to be so plain, by the written admission of the defendant, as to require no judicial consideration. Hence the sentence in such cases is not required to be pronounced by the court, but may be indorsed by the clerk upon the statement, and entered in the record without any order therefor, except the direction of the statute itself, when the conditions thereof are complied with. Such judgment has an existence and takes effect from the date of such indorsement and entry, and not otherwise. In such case the sentence of the law is made manifest only through the agency of the clerk in thus indorsing and entering the judgment. In the nature of things there can be no oral promulgation of such a judgment. Phelan v. Ganebin, 5 Colo. 14; Alvord v. McGaughey, id. 244.

As a check against abuses which might follow from committing so important a matter as the entry of judgments to the clerk without judicial supervision, it has been asserted that statutes authorizing such judgments must be strictly pursued or the judgments will be void. The rule thus stated is too broad under many circumstances. Without undertaking to lay down a rule applicable to all cases, we aré satisfied that, where a judgment has been entered by confession, without action, unless the statute authorizing such entry has been complied with in all substantial particulars, the enforcement of the judgment may be enjoined upon principles of equity at the suit of a third party prejudiced thereby; also that, if a judgment by confession be not entered in fact substantially as required by the statute, an execution in advance of such entry will be postponed in favor of a junior execution or attachment creditor who has regularly made a levy based upon valid proceedings. Freem. Judgm. §§ 543, 557, 558; Freem. Ex’ns, § 20; Ling v. King, 91 Ill. 571; Chapin v. Thompson, 20 Cal. 681; King v. French, 2 Sawy. 441; Edgar v. Greer, 7 Iowa, 136; Criswell v. Ragsdale, 18 Tex. 443; Brown v. Hathaway, 10 Minn. 303 (Gil. 238).

Appellants, being strangers to the judgment by confession entered in favor of appellees, are not concluded by its date nor by its recitals. They are at liberty to impeach it for fraud by an original action, and, if successful, to restrain the enforcement thereof to the prejudice of their rights. This they attempted in the case before us. The complaint sets forth, by specific averments, the several matters heretofore mentioned, showing wherein the judgment by confession is to be deemed fraudulent as against appellants. Issue having been joined on the complaint, appellants were entitled to show the truth of their allegations by oral as well as by documentary and record evidence, and it was error to exclude such oral evidence. 1 Greenl. Ev. § 523; 2 Story, Eq. Jur. §§ 874, 875, 1571-1575; 1 Whart. Ev. § 797; 2 Whart. Ev. § 985; Best, Ev. § 5.95; Webster v. Reid, 11 How. 456.

The general rule in equity undoubtedly is that partnership creditors are entitled to be paid out of the partnership property, in case of the insolvency of the firm, in preference to the creditors of one or more of the individual partners. It is true a mere creditor at large of the copartnership could not, at common law, enforce such equity without first obtaining judgment and making a levy upon the copartnership assets. Having done this, he.could enforce his lien by injunction against a creditor of an individual partner or partners to restrain a sale under a similar levy. Since the levy of an attachment under our statute gives a conditional lien, a partnership creditor, having levied á valid attachment upon the property of an insolvent firm, should be permitted to have such property, or the fruits thereof, preserved until his cause can be adjudicated, and for that purpose the sale of the attached property under an execution invalid as to him may be enjoined, or the proceeds thereof retained in the .custody of the court for his benefit in case he succeeds in obtaining judgment in his favor against the firm. 2 Story, Eq. Jur. § 1253; Young v. Frier, 9 N. J. Eq. 465; Case v. Beauregard, 99 U. S. 119; Breene v. Bank, 11 Colo. 97; Raynolds v. Ray, supra.

Under the view we have taken of this case, it is unnecessary to consider the remaining assignments of error in behalf of either party. The judgment of the district court is reversed for further proceedings in accordance with this opinion.

Reversed.  