Union Colony Bank v. United Bank of Greeley National Ass'n

Judge TURSI

dissenting.

I respectfully dissent.

Here, Union Colony, in order to circumvent the prior judgment of United Bank and to obtain a preference on a note which did not mature until after United Bank had a judgment and had issued a garnishment thereon, induced Davis to sign a confession of judgment and waiver of automatic stay of execution enabling it to obtain judgment and a charging order on the day it filed its complaint. At trial, the court noted the collusive nature of this procedure and fashioned an appropriate equitable remedy.

However, the trial court also held that, even absent the apparent collusive acts of Union Colony and Davis, fashioning an equitable remedy was within its statutory discretion. I agree.

Section 7-60-105, C.R.S. (1986 Repl.Vol. 3A) provides that: “In any case not provided for in this article, the rules of law and equity ... shall govern.” Also, § 7-60-128(1), C.R.S. (1986 Repl.Vol. 3A) provides that: “On due application to a court of competent jurisdiction by any judgment creditor of a partner, the court which entered the judgment, order or decree, or any other court, may charge the interest of the debtor partner with payment of the unsatisfied amount of the judgment with interest thereon; and may then or later appoint a receiver of his share of the profits of any other money due or to fall due to him in respect of the partnership and make all other orders, directions, accounts, and inquiries which the debtor partner might have made, or which the circumstances of the case may require." (emphasis added)

Thus, pursuant to these provisions of the Uniform Partnership Law, the trial court is empowered to fashion an equitable remedy in resolution of disputes concerning part-, nership matters. Absent an abuse of discretion by the trial court, we may not substitute our discretion for its.

Here, the trial court did not abuse its discretion. Therefore, I would affirm.