B.K. Sweeney Electrical Co. v. Poston

THE action, in which the proceedings are here under review, was for replevin of certain tools, accessories and servicing equipment for the lubrication of automobiles, previously used by one Dwyer in the conduct of a business known as the "Ernie Dwyer Pontiac Company" in Colorado Springs. Plaintiff in error, plaintiff below, claimed under a chattel mortgage given it by Dwyer for the balance of the purchase price of the personal property in controversy. In justification of his possession the answer of defendant asserted title by purchase at a sale under a distraint warrant issued by the state treasurer for delinquent sales and service taxes theretofore collected by Dwyer from his customers for goods sold and services performed, but which he had not remitted to the state as required by pertinent statutes. By its replication the mortgagee denied certain of the new matter contained in the answer and pleaded six special defenses challenging the validity of the tax, the tax lien and sale thereunder upon constitutional grounds. Demurrers by defendant to such six special defenses were sustained and after a stipulation as to certain facts not covered by the pleadings, the court entered judgment in favor of defendant and against the plaintiff mortgagee. The latter prosecutes this proceeding in error. Because of the interest of the state in the important legal questions involved, the Attorney General in his official capacity, as amicus curiae, participated in the trial below and appears here in the same relation supporting the position of the defendant.