Rocky Mountain Oil Co. v. Central National Bank

29 Colo. 129

• Court: Supreme Court of Colorado
• Decided: September 15, 1901
• Docket: No. 4023
• Status: Published

Opinions

Mr.Justice Gabbert

delivered the opinion of the court.

Under the theory upon which this case was tried below, and as practically conceded by counsel upon both sides, the main question is, does the testimony establish that the defendant is a corporation whose chief office or place of business was without the state of Colorado at 'the time the affidavit of attachment was filed, and the writ issued, in the sense that its property was subject to attachment on the grounds set out in such affidavit? The expressions in the attachment act, “chief office” or “place of business,” while not strictly synonymous, must be regarded as equivalent. The essential characteristics of each might be very different. The former would ordinarily be the place where the officials charged with the general management of its affairs might meet and direct them; while the latter might be the same, or the place where its business operations were carried on under the direction and supervision of an authorized agent. The two designations are mentioned in the disjunctive, but it is clear that one must be considered the equivalent of the other, although each may be maintained at a separate place. Counsel concede that the subdivision of the attachment act in question applies to domestic corporations. This certainly must have been the purpose, for express provision is made as to foreign corporations. Its evident object was to keep corporations organized under the laws of this state within the jurisdiction of our courts, and subject to the visitorial powers of the state, and at the same time protect creditors by requiring an office or place of business to be maintained within the state, which would be under the direction of an officer or agent upon whom service of process might be had, which would be binding upon the corporation. When either a chief office or place of business of a domestic corporation is maintained in this state, the object of the statute is satisfied. It is immaterial, therefore, whether the chief office of the defendant was in the city of Cleveland or not. The chief place of business was within the state, in the county of Fremont, under the supervision and control of Mr. Short, whose relations to the company were such that a service of process upon him would have been binding. The main purpose oí the attachment act is to permit a creditor to secure a lien upon the property of the fraudulent debtor. Other grounds than those of fraud exist which are manifestly necessary and just/ but their operation should be limited to those cases which they were intended to cover. The remedy by attachment owes its existence entirely to the statute, and unless a case clearly comes within its provisions, it cannot be maintained. Great Western M. Co. v. Woodmas of Alston M. Co., 12 Colo. 46. The case at bar is a clear exemplification of the necessity for this rule. It is not pretended that the defendant has been guilty of any fraud, nor have the rights of the plaintiff in any sense been jeopardized or changed by reason of the fact that the chief office of the defendant may have been maintained in the city of Cleveland. On the contrary, if its chief office had been maintained in the city of Denver, as provided in its articles of incorporation, the position of plaintiff would have been no different, unless, as claimed for it, the direction of the affairs of defendant by its officers from the city of Cleveland gave plaintiff the right to resort to the harsh remedy of attachment. At the time the writ of attachment was issued, defendant was actively engaged in carrying on its principal business operations in the state, and therefore maintaining a place of business within its limits.

The judgment of the lower court should have been for the defendant on the issue made by the traverse of the affidavit of attachment. On this issue its judgment is reversed, and the cause remanded, with directions to enter one in favor of defendant.

Reversed, and Remanded,