by certificate No. 19, issued to Fawcett, were still the property of Fawcett, and had only been assigned to Minnie Coryell for the purpose of assisting her in obtaining a supersedeas bond in case No. 1401. Based upon the finding that she still owned the stock, the court found and held that Fawcett's acquittance was without consideration and void, and was given in accordance with and to embrace her confession of error in the Supreme Court, in which the judg ment in her favor was affirmed, notwithstanding her confession of error; that the release or satisfaction of judgment filed by the fuel company April 16, 1913, at the time of making the final order and discharge of that date, was not made in good faith and is void, because Fawcett as a stockholder, was not notified of the meeting, and did not participate therein; that the final order of court entered by Judge Cavender April 16, 1913, should be set aside and held for naught, except that portion discharging the receiver and appointing another receiver for the fuel company, and that a restraining order issue. Judgment was entered accordingly and Napier, who as receiver of Fawcett brought the suit, was appointed receiver of the fuel company, whereupon the Coryells prosecute this writ of error to review the action of the trial court.

GARRIGUES, J., after stating the case as above:

The purpose of the action is to revive or reinstate the old judgment of April 24, 1911, in case No. 1401, and for an accounting. The judgment below was based upon the erroneous theory that Fawcett owned 5,000 shares of the fuel company stock. The complaint alleges the stock had been assigned in trust to Parks for the purpose of transfer, in case the property was sold, in which event Fawcett was to receive $5,000 in money; that the trust terminated because there was no sale of the property, but that Parks did not return the stock, which Fawcett still owned. The court found the stock had been assigned to Parks to assist the Coryells in obtaining an appeal from the judgment entered in favor of Fawcett against them April 24, 1911, although, as appears from the record, the assignment was seven

years before, to-wit, January 25, 1904, and the purpose of the assignment having been completed, the court found that the stock was the property of Fawcett.

The evidence does not support either position. Plaintiff sued as receiver of Fawcett, and the basis of the action is her ownership of the stock; if that fails, the whole case fails. The complaint pleads the judgment of April 24, 1911, in favor of Fawcett against the Coryells, and seeks to have the acquittance filed by Fawcett, the acquittance of the fuel company and the final order and discharge entered April 16, 1913, vacated and set aside, and the old judgment reinstated. The answer pleads the acquittance of Fawcett and of the fuel company, and the clearance of the Coryells by the final order and discharge. The replication alleges generally that Fawcett's acquittance was obtained by fraud and false pretenses, and that the fuel company's acquittance was obtained by fraud and misrepresentation. There is no cause of action stated in the complaint that is not embraced in the final order entered by Judge Cavender April 16, 1913. The judgment in the case at bar follows the finding of the court, that Fawcett still owned the stock at the time of the trial, and of course, that being erroneous the judgment can not stand.

When case No. 1401, being No. 7763 here, was docketed on error March 14, 1912, Fawcett voluntarily entered her appearance and filed a confession of errors duly acknowledged and signed by her, in which she stated that she was not a stockholder, had no interest in the fuel company, and asked us to order a dismissal of the complaint. She went before the commission in that case appointed by us, and testified unequivocally that she was not a stockholder in the fuel company.

The final order and discharge entered April 16, 1913, provided that Fawcett should not be bound thereby unless she voluntarily and of her own accord released all rights she might have under the decree of April 24, 1911. Thereupon the next day she made, signed, acknowledged and entered of record her acquittance, inter alia as follows:

The undersigned, Pauline M. Fawcett, plaintiff, hereby releases and discharges the defendants and each of them from all demands, claims or benefits, accrued or to accrue, under and by virtue of the decree made and entered April 24, 1911; this acquittance being in accordance with and embracing my confession of error in the Supreme Court of the State of Colorado."

The receiver of Fawcett is in no better position than Fawcett, and to allow a judgment to stand upon the face of this record, based upon the theory that Fawcett is still the owner of this stock, would reflect but little credit upon the courts.

The erroneous finding of the court that Fawcett owned the stock, naturally caused it to reach another erroneous conclusion, that she was entitled as a stockholder, to notice of the stockholders' meeting held April 29, 1912, for the purpose of directing the officers of the fuel company to make and acknowledge the acquittance, and that all the stock was not present and voting at this meeting. The decree setting aside the acquittance of the fuel company is based upon the erroneous finding that this was not a legal stockholders' meeting and therefore was not the action of the fuel company, because Fawcett was the owner of 5,000 shares of stock April 29, 1912, when the meeting was held.

The complaint alleged generally, fraud and false pretenses which induced Fawcett to sign the acquittance. The allegations and proof required with regard to false representations inducing another to act, are well understood, and need not be repeated. This case comes far short of the mark both in the pleading and proof. Also the allegation of fraud and misrepresentation practiced upon the court to induce it to sign the final decree of April 16, 1913, is a mere general allegation of which there was no proof whatever. The record shows that the court was familiar with the situation and fully protected the rights of all parties; that the final order of court was freely and voluntarily complied with in good faith by all the parties, including Fawcett, and the judgment in the case at bar, up

setting all that had been done, can not be permitted to stand.

The judgment is reversed and the cause remanded with directions to the lower court to dismiss the complaint. Judgment reversed. Chief Justice Hill and Mr. Justice White concur.

No. 9091.

COLLARD v. HOHNSTEIN.

1. STATUTE-Remedy Prescribed-When Exclusive. To have this effect the statute must expressly or by necessary implication, abrogate the right to an action given by the common law, a former statute.

2.

Exempt Property—Action for Unlawful Levy. The property owner is not restricted to the proceeding prescribed by Rev. Stat. secs. 3782, 3783, but may have his action for treble damages, under Rev. Stat. sec. 3634.

Error to Logan District Court, Hon. Haslett P. Burke, Judge.

Mr. W. L. HAYS, for plaintiff in error.

Messrs. MUNSON, KEATING & MUNSON, for defendant in

error.

Mr. Justice Bailey delivered the opinion of the court.

THIS is an action brought under section 3634, R. S. 1908, for treble damages for the alleged unlawful seizure, under process, by a constable, of property claimed to be exempt from execution sale. Verdict and judgment were for plaintiff. Defendant assigns error and brings the judgment here for review.

The sole question is whether the trial court had jurisdiction to hear and determine the case. The theory of plaintiff in error is that no action for the wrongful levy of an attachment writ will lie against a constable making such levy, and that the only remedy open is under sections 3782 and 3783, R. S. 1908, providing for a hearing before a justice of the peace to determine ownership, or the ex

emption from process of property attached. It is urged that these statutory remedies are exclusive.

To deprive plaintiff of his common law right of action it is essential that it affirmatively appear that the statutes themselves, either directly or by necessary implication, abrogate such right.

In Madera v. Holdridge, 4 Colo. App. 126, 35 Pac. 52, this question is indirectly determined. That was an action for damages for seizure of exempt property upon a writ of attachment out of a justice court, and the question was whether the return of the property had been made within a reasonable time. The Appellate Court, in holding that this was a question for the jury, tacitly acknowledged the right of plaintiff to maintain the action independent of sections 3782 and 3783, supra.

Harrington v. Smith, 14 Colo. 376, 23 Pac. 331, 20 Am. St. 272, was a similar action against a constable for unlawful seizure of exempt property. This court there held in effect that a plaintiff is not necessarily confined to the statutory remedy.

The Court of Appeals, in Duncan v. Burchinell, 14 Colo. App. 471, 61 Pac. 61, was another case in which the plaintiff was permitted to recover in an action for damages for alleged wrongful levy upon exempt property under an attachment writ.

It appears, therefore, that the statutory remedy never has been considered exclusive under a state of facts such as are here disclosed. Section 3782 and 3783, supra, do not purport to abolish the other remedies which a litigant had at common law. The rule is that a remedy provided by one statute does not abolish that given by another, or by common law, unless specifically so provided. Colo. Milling & Elevator Co. v. Mitchell, 26 Colo. 284, 58 Pac. 28. This principal was applied in Lilly v. Tuttle, 52 Colo. 141, 117 Pac 896, Ann Cas. 1913 D, 196, where it was held that the Code provisions concerning arbitration did not affect the common law remedy. The situation is analagous to a case where the property of a third person has been taken under execution. In such cases there never has been any doubt