46 Colo. 590 | Colo. | 1909
delivered the opinion of the court:
Action by the obligee in an injunction bond against the obligors to recover the damage which it says it suffered as a result of the wrongful suing out of the injunction writ. At the close of plaintiff’s testimony, defendants offering none, the court granted defendants’ motion for a nonsuit, and dismissed the action, and the former is here with its appeal.
There have been two trials in the district court. At the first one plaintiff recovered a judgment for $1,500.00, which, on appeal to the court of appeals, was reversed upon the sole ground that $500.00 thereof was allowed for attorneys’ fees which plaintiff paid his counsel in the injunction suit, and the evidence failed to disclose how much of it was incurred in procuring a dissolution of the injunction, which particular part only was covered by the bond. It was, of course, wrong to include in the allowance what, if anything, plaintiff paid his attorneys for .services in connection with the case generally.—Quinn et al. v. Baldwin Star Coal Company, 19 Col. App. 497.
Counsel for defendants, appellees here, in their brief say: “The same questions raised at the first trial, and passed upon by the court of appeals were presented at the second trial, and are before this court for determination on this appeal. ’ ’ It thus appears that we are ashed by counsel for defendants to redetermine the questions of law and fact hitherto determined by the court of appeals. While the decision of that tribunal on the former appeal was the law of the case for the district court in the event of another trial, which learned counsel for defendants evidently persuaded the trial court it was its duty to
The material facts on which the decision rests, are fully and chronologically stated in the opinion of the court of appeals to which we refer. It is sufficient for our present purpose to say that plaintiff claimed to be the owner, and, through its lessees, was in actual possession of, and working, a, coal mine in Gunnison county.. Defendant Quinn, claiming ownership of the same- property, brought an action in the district court against plaintiff company -and its lessees, and obtained a temporary writ of injunction restraining them from operating, working, taking out, or selling any coal from the premises. The restraining order was in force for nearly three years, and until plaintiffs in that action, defendants here, voluntarily dismissed it, which carried with it a dissolution of the writ. There being no evidence by defendants at the second trial, the evidence introduced by plaintiff, and all legitimate inferences therefrom, must be taken as true in determining the ruling on the motion for nonsuit Substantially the same evidence, when before the court of appeals, in the absence of contrary proof by defendants, was held
Defendants, however, while insisting that evidence upon this issue should not have been submitted to the jury, say, nevertheless, that, if it were otherwise, for other reasons disclosed by the record, plaintiff was not'entitled to a recovery, and to these we address ourselves.
Before the rights of any of the parties here attached, the lands in controversy were a part of the public domain, coal lands, described as the north half .of a certain quarter section in Cunnison county. One Sprankle made entry upon this tract under 'the federal laws, and intended to file upon it as the north half of the quarter section, which is its true description, but through some mistake his filing papers described it as the south half of the section. Quinn, a defendant in this action, and who procured the writ of injunction, after Sprankle had made, and taken possession under, his filing, made entry upon the same north half.. Sprankle at once protested Quinn’s filing, but it was allowed by the local land office. After-. wards steps were taken by Sprankle, in the United States land office, to have. Quinn’s entry canceled, dn the ground that it was fraudulently made, and for leave to amend his own filing, by writing therein •the true description. The controversy finally reached the secretary, of the interior and, upon the conveyance to the government of the south half of the .quarter section, on which he had no intention of fil
With this statement of the salient facts, we take up the objections to plaintiff’s recovery which defendants have argued:
All of them may be summed up in the general statement of defendants’ counsel that the proceedings in the land department by the secretary of the interior are void. Their contention is that while the land department, which is entrusted with the exclusive management and disposition of public lands, may, in a proper case, permit an entry to be amended by allowing the correct description to be inserted, nevertheless, cannot make the amended, relate back to the time of the original, entry. The land depart-” ment has jurisdiction to permit an amended entry to be made, and it likewise has jurisdiction to cancel an entry upon the ground of fraud. It did so in the proceeding referred to, and determined therein that a fraud had been perpetrated by Quinn upon the government, and that his original entry was fraudulent.
Another position is, that until Quinn’s entry was canceled he had a superior title to this coal mine. This position is wholly untenable. Quinn’s entry was fraudulent in its inception. He never acquired any rights to the premises. ' His alleged title was void ab initio. Obtaining an injunction by Quinn from the district court, upon the strength of a supposed rightful title, was as miich a fraud upon the jurisdiction of the court as was his entry in the land office a fraud upon the United States government.
As part of the same contention it is also said that no injury was done to the freehold for which a recovery can be had, because title to this particularly described tract was not in plaintiff when the injunction writ was served. The court of appeals thought there was, and upon substantially the same evidence in this record we are of the same opinion, and that plaintiff was the equitable owner. Questions of law here raised by defendants, appellants here, are resolved against them. The evidence being sufficient
Reversed and remanded.