terest in this property, the chief object of which was to subject the property to the satisfaction of his claim and demand, evidenced by the Nebraska judgment, which property, it was alleged in the bill, belonged in equity to David, Shuck's debtor. The principal defendants, David and Cora, being nonresidents of Colorado, and having absconded and left this state, if they ever were here, could not be personally served with process. All the proper steps were taken to secure service by publication under our statutes relating thereto, and such service was perfected as they provided. At the expiration of this substituted service, and when it became complete, David and Cora did not appear, and their default was entered. Evidence was taken, the court made findings of fact in favor of the plaintiffs and against David and Cora, and upon the same a decree was entered that David and Cora were indebted to the plaintiff Shuck in the sum of more than $6,000, and the property in question was held by Cora as a resulting trust, and was subject to the satisfaction of the debt thus ascertained. Sale of the property was ordered, which was afterwards executed, and a certificate of sale was issued to Shuck and duly recorded, and, after the expiration of the period of redemption, the sheriff's deed to him was thereupon made and duly recorded. This decree not only found generally for the plaintiff, but also recited specifically full compliance with all of the necessary and statutory steps that justify and authorize service by publication. The decree also specifically recites that on the day of filing the complaint in the creditors' suit a notice. of lis pendens, properly describing the property, was issued and filed by plaintiff with the county recorder, which filing was made about two months before the deed of David and Cora to the Quackenbushes was recorded.

We entertain no doubt, if the district court of Larimer county in cause No. 3621, in which court the

instant case also was brought, acquired jurisdiction of the subjectmatter of the former creditors' bill, as the result of substituted service, that the decree entered in the instant case, quieting title in the plaintiffs, is wrong. The judgment, quieting plaintiffs' title, now before us for review, was rendered because, as stated by him, the presiding judge, the same judge who rendered the former decree in the creditors' suit, was of the opinion that the court there did not have jurisdiction of the res, and that the filing of the notice of lis pendens availed nothing, and the judgment was void. There was, it is true, an issue tendered in the pleadings here that the plaintiffs in this action were in actual possession of the land at the time the creditors' suit was begun. If they were, the defendants here concede that they would be charged with knowledge of the plaintiffs' rights at the time the creditors' suit was begun, and therefore the equities of the plaintiffs here would be superior. But the trial court below did not find that plaintiffs were in possession at that time, or that the defendants here had knowledge or notice thereof. If the court had made such finding, it was not sustained by the evidence. So that the question of the possession by these plaintiffs of this property at the time of the institution of the creditors' suit is not here involved. Upon the record the decision here depends upon the validity or invalidity of the decree in the creditors' suit, and to the consideration of that question we now address ourselves.

1. In England and in the state courts of the Union the general rule, in the absence of a qualifying statute, is that a creditors' bill may not be maintained, unless the creditor has theretofore reduced his claim to a judgment at law and the execution issued thereon has been returned nulla bona. In Colorado, except in the Federal courts, which are not so exacting in such proceedings, a mere general creditor may not maintain a suit in the nature of

a creditors' bill, unless he has, in addition to the foregoing requirements, caused his previously rendered judgment to become a specific lien on the judgment debtor's interest in the real estate sought thereby to be subjected to its payment. Robison v. Gumaer, 43 Colo. 310, 95 Pac. 935, and cases cited. The court, speaking by Mr. Justice Helm, said such a lien may be procured in at least three ways, viz.: "By levy of an execution thereon in the manner provided by law if, as in this case, the realty can be identified; by filing a transcript of his judgment in the office of the clerk and recorder of the county wherein the property is situate, and thus securing a statutory lien which binds all interest in realty then owned or afterwards acquired by the judgment debtor during the period of six years from entry of the judgment; or by attachment of realty before judgment and omission to merge the attachment lien through levy of execution or filing of the judgment transcript."

The learned judge did not, in his opinion, say, or intend to say, that the lien might not be procured by some method other than the three there enumerated. Indeed, he was careful to state in two different sentences of his opinion that there were, or might be, other methods. Such precautionary language was doubtless employed because the careful investigation of the law relating to creditors' bills which the opinion exhibits must have revealed to the writer, what the English and American cases from the very beginning expressly declare, that there are exceptions to the general rule which Judge Helm announced governed the case then under consideration. One of these exceptions which excuses a previous judgment and the utilization without avail of process to enforce it is where it is impossible or impractical to recover in an action at law a personal judgment by the creditor against the debtor; as, where the debtor is a nonresident, a fugitive from justice,

has absconded, and his whereabouts are unknown, or where he is insolvent, or some court has enjoined prosecution of actions against him. In such instances, one or more of which are presented by this recordand other exceptions might be noted,-the courts say that, as the general rule is based upon the doctrine that resort to equity is not permissible until the one seeking its aid has exhausted his legal remedies, it would be folly and a useless expense to refuse equitable relief, because the one seeking it had failed to comply with an impossible or wholly useless condition precedent. We are not cited to any case in this jurisdiction that negatives the right of a plaintiff in a state of facts like those now before us to maintain a creditors' suit without a previous judgment and exhausting unavailingly process thereunder. Following the decided weight of authority, both of the Federal and state courts, we hold that, since the debtor McIninch was a fugitive from justice, a nonresident of Colorado, and that the only property interest which by general he possessed was residence. the equitable estate in the lands in controversy, which are situate in Larimer county, cause No. 3621, the creditors' bill was maintainable by the general contract creditor, because the undisputed facts bring the case within an exception to the general rule, which exception makes unnecessary previous recovery at law by the creditor and the unavailing employment of process to enforce it. Among the authorities so holding are: Case v. Beauregard (Case v. New Orleans & C. R. Co.) 101 U. S. 688, 690, 25 L. ed. 1004, 1005; Williams v. Adler-Goldman Commission Co. 142 C. C. A. 70, 227 Fed. 374; Scott v. M'Millen, 1 Litt. (Ky.) 302, 311, 13 Am. Dec. 239; Overmire v. Haworth, 48 Minn. 372, 31 Am. St. Rep. 660, 51 N. W. 121; Skilton v. Codington, 185 N. Y. 80, 113 Am. St. Rep. 885, 77 N. E. 790,

Creditors' billmaintenance

creditor-non

a

where the court said that, while the general rule requires a previous judgment, the rule is one of procedure, and does not affect the right, and, where recovery of a judgment is impracticable, it is not an indispensable requisite to enforcing the rights of a general contract creditor. Hanscom v. Hanscom, 6 Colo. App. 97, 39 Pac. 885; Livingston v. Swofford Bros. Dry Goods Co. 12 Colo. App. 320, 56 Pac. 351; 15 C. J. p. 1390, where many cases are cited. It has also been held that the objection to nonrecovery of a previous judgment is one personal to the defendant, and may be waived by him by failing to interpose it at the trial, or where he suffers default. Pennsylvania Steel Co. v. New York City R. Co. (C. C.) 157 Fed. 440; Re Metropolitan R. Receivership (Re Reisenberg) 208 U. S. 90, 52 L. ed. 403, 28 Sup. Ct. Rep. 219.

If defendant Shuck's former creditors' suit, the decree in which was pleaded in the answer in this case as a bar to plaintiffs' recovery, falls within a recognized exception to the general rule, and therefore a previous judgment is not necessary to its maintenance, it would seem logically to follow that the further requirement in this state announced in the Gumaer Case, that the previous judgment must also be made a specific lien upon the property as a condition precedent, may be dispensed with, because there is no judgment in existence that can be made to operate as a specific lien. But, as counsel for the creditor here seem to concede that to uphold the decree in the former creditors' suit a specific lien was procured therein, we proceed to show from this record that such lien was acquired, and that the lien attached as an incident to, and in pursuance of, that suit.

2. The filing of a bill in chancery and service of the subpoena is one recognized method of procuring a lien on equitable assets of a defendant debtor, whether the debt is evidenced by a simple contract or by a judgment. See cases already cited and King v. Goodwin, 130 Ill. 102,

17 Am. St. Rep. 277, 22 N. E. 533, where the court says: "The general rule is, that the filing of a creditors' bill, and service of process, create a lien on the equitable assets of the judgment debtor. It has been aptly termed an 'equitable levy.'" Roberts v. Albany & W. S. R. Co. 25 Barb. 662.

There is no statute of this state which modifies or is inconsistent with this general rule. Shuck's former suit was in the nature of a creditors' bill. Its object was to enforce a resulting trust or to subject to his demands the equitable assets of his debtor. If not strictly a proceeding in rem, it was of that nature. It is attended by the same incidents and enforced by the same remedies. By the

over property.

filing of his com- -jurisdiction plaint the district court acquired jurisdiction of the res. Section 50 of our Code provides that, from the filing of the complaint or the service of the summons in a civil action, the court shall be deemed to have acquired jurisdiction and to have control of all subsequent proceedings. By filing at the same time notice of lis pendens, there was created a lien which attached at the time the notice was filed, the effect of which was to pre- effect of filing. Lis pendensvent interference by third parties with the property during the pendency of the action, and to preserve it to answer any valid judgment the court might thereafter render concerning it. An attachment remains a continuing security for any judgment that may obtained. Johnson

Attachment

be -effect.

v. Collins, 116 Mass. 392. It is an encumbrance from the time of its levy, and a subsequent judgment relates back to that time. Kelsey v. Remer, 43 Conn. 129, 21 Am. Rep. 638. So, also, and on the same principle, an equitable levy by a creditors' bill has the same virtue as a lien by attachment, in that a subsequent judgment therein relates back to the time of the levy. There is

one case declares that, if service of that writ is had after the bill is filed, the lien by relation attaches as of the date the bill was filed. Other cases are that there is no relation, and service of the writ initiates the lien as of the day of actual service. Among other reasons that led our general assembly to enact § 38 of our Code of Procedure, one doubtless was to fix the time when lis pendens begins to run. Section 38 provides that in any suit or other proceeding affecting title to real property the plaintiff, at the time of filing his complaint or at any later time during the pendency of the suit, may file with the county recorder of the county a notice of its pendency (stating what it shall contain), and only from the time of filing of such notice shall the pendency of the suit be constructive notice to a purchaser or encumbrancer of the property described in the pleading. The meaning, of course, is that the notice, when filed, is constructive notice of the suit, and is effective as such from and after the day of filing. Lis pendens was not created by this section. It merely modifies or restricts the common law on that subject. Buckhorn Plaster Co. v. Consolidated Plaster Co. 47 Colo. 516, 108 Pac. 27. However, the section makes inapplicable decisions of courts at variance with its provisions. Some courts have held, where a statute does not otherwise provide, that in case of service of process, like a summons by publication, lis pendens takes effect and the lien attaches on completion of the publication. 25 Cyc. p. 1465 (2). But by our § 38, constructive notice takes effect the very day it is filed, even though publication of the process is not then complete. So, also, are inapplicable decisions of other states that lis pendens is

not primarily a rule of notice at all, but only of public policy. Section 38 expressly makes filing of notice of his pendens constructive notice. So that we conclude that Shuck in cause No. 3621 procured a specific lien on this property January 26, 1917, when notice of lis pendens was filed, at which time the deed of plaintiffs was not on record and was not recorded until March 20, nearly two months later. The district court in that action obtained jurisdiction of the res upon the filing of his complaint, and filing of notice of lis pendens initiated or created an equitable levy, for the reasons above given. If this jurisdiction was not lost or exceeded during the further progress of the case, and if jurisdiction of the defendants to the extent of charging their property in Colorado by impressing it with the lien thus procured was properly acquired, the decree rendered was not only not a nullity, but it was valid and binding upon these parties and their privies.

The only specific failure of the creditor in this respect which the plaintiffs point out is his neglect in the creditors' suit to sue out a writ of attachment and cause it to be levied on the property. It must be remembered that the legal title of this property was not then, and never had been, in David, the debtor, but it stood on the records in the name of his wife, Cora. The creditor, in his complaint, states facts which, if true, gave rise to a resulting trust. By § 115 (2) of our Code a writ of attachment is executed or levied on real estate or any interest therein belonging to the defendant, but which stands on the records in the name of any other person, by leaving with such person or his agent a copy of the writ and a written notice that the described property is attached pursuant to the writ, and by filing a copy of the writ and notice with the recorder of the county. We must presume for our present purpose, as the fact undoubtedly is, that this property belonged to the defendant debtor. On

the records it stood in the name of Cora, his wife. Both were nonresidents, absconders, and he was a fugitive from justice. Neither had an agent in Colorado on whom service or execution of the writ of attachment could be made. Had a writ of attachment been sued out by the creditor, it was impossible to execute it as required by § 115, because all the statutory steps essential to a valid levy must be taken or no valid seizure can be made. Graham v. Reno, 5 Colo. App. 330, 38 Pac. 835. Failure, therefore, of Shuck to sue out a writ of attachment was excusable. No seizure or levy upon this property by or under an attachment was possible in this state, and the only remedy, if any, left to the creditor was that invoked by him, a creditors' suit, by which, in this state, as generally, an equitable lien may be procured, or an equitable levy made.

Creditors' bill -effect of failure to attach property.

But these plaintiffs further contend, even if none of the objections hereinbefore considered prevented or made impossible the maintenance of the creditors' suit, still the case as made therein is not one where jurisdiction of the parties can be acquired by publication of summons, and, unless such jurisdiction was acquired, the judgment is a nullity. Not so. First, we say the proceeding in cause No. 3621 was not based on the Nebraska judgment. Courts differ as to whether a foreign judgment is a basis in the courts of another state for a creditors' bill. It is in Michigan (Earle v. Grove, 92 Mich. 285, 52 N. W. 615), and in some other states. Some Federal courts entertain jurisdiction on the basis of a judgment in a state court. Other courts hold to the contrary, but that question is not now before us. The Nebraska judgment was pleaded merely as a part of the history of the transaction between the creditor and the debtor, and as evidence of a debt. No virtue was or is by the defendants claimed for it as a domestic judgment of itself

in effect is only a judgment in rem taken as a whole, and such is its nature, it would not be invalid because of such irregularity. 17 Enc. Pl. & Pr. p. 119. Section 45 of our Code itself refutes the contention of the plaintiffs here, as does the Hanscom Case, 6 Colo. App. 97, 39 Pac. 885. That section expressly declares that service by publication of summons may be made in cases of attachment, foreclosure, claim and delivery, or other proceedings where specific property is to be affected, or the procedure is such as is known as a proceeding in rem. A creditors' bill, as we have already seen, is a proceeding in rem. It also affects specific property. In addition to this authority, the following cases