5 P.2d 868 | Colo. | 1931
Lead Opinion
delivered the opinion of the court.
Plaintiff Boxwell brought this action against Ernest A. Morgan, the Greeley Land and Live Stock Company, the Greeley Union National Bank and other defendants who, if served with summons, did not appear in the action. The original complaint was amended and this amended complaint was further amended. As thus amended this pleading, in substance, states that in the year 1924, plaintiff Boxwell resided in the state of Iowa, and was there engaged in breeding Hereford cattle and other live stock, was familiar with values and productivity of Iowa lands but not with similar Colorado properties or with irrigation farming, all of which was well known by the defendant Morgan and the defendant land company, which was organized by and under his full control. In that year plaintiff was in Greeley, Colorado, and there met Morgan and, as the result of fraudulent representations, was induced to enter into a ■written contract with him and to sign a note and to engage with Morgan and his company in carrying on the live stock business on the ranch property in Weld county thus acquired, all of which was to the great loss and damage of the plaintiff.
The relief asked by the plaintiff is rescission and cancellation of the contract and note, and damages to him resulting from defendant’s fraud. In the district court the defendants who appeared in the action, with the exception of the Greeley bank, filed their respective motions and special and g’eneral demurrers to the' amended complaint, all of which were overruled, the trial court holding that as to these defendants the amended complaint stated a g’ood cause of action. The defendant Greeley bank filed its own separate motions and .special demurrers attacking’ the complaint, all of which were
After the district court had sustained this general demurrer of the bank to the plaintiff’s complaint as amended, and dismissed the action as to the bank, it was orally stipulated by the parties concerned that if plaintiff should, as he did, elect to stand upon his amended complaint and should thereupon prosecute a writ of error from the judgment dismissing the action as to the defendant bank, which he has done by the present writ of error, the trial of issues to be thereafter joined in the said cause as against the other defendants, should be continued from time to time until the Supreme Court should determine such writ of error; and that such dismissal, in so far as it affects the defendant bank, is without prejudice to plaintiff’s right to proceed in the case as against the remaining defendants, other than the bank, as he may be advised.
This court hitherto has not been confronted with a situation exactly like that which is exhibited by this record. There is no charge in the complaint that the defendant bank had any connection with, or any knowledge of, the alleged frauds practiced by Morgan and his company upon the plaintiff Boxwell. The bank is proceeded against on the alleged ground that several years after the perpetration of the alleged fraud of the defendant Morgan upon the plaintiff, the bank received from this defendant, as payment of his note to the bank as payee, moneys which in equity belonged to the plaintiff, being-part of the money of which plaintiff had been defrauded
It has been repeatedly held that a reviewing court has the inherent authority to regulate its jurisdiction so as to prevent successive appeals from a judgment. 3 C. J., p. 348, §97. Although the defendant in error bank in this writ of error has discussed the merits, it has observed in its brief that the writ of error is premature. Doubtless it may be true that both parties upon this review desire to have this court determine the propriety of the order of the district court dismissing* the action as against the bank. Under the almost unbroken line of decisions we cannot with propriety do so-, because the order or judgment, which the plaintiff in error has brought up for review, is not a final judgment, but interlocutory, to which neither an appeal nor writ of error lies unless some statute expressly authorizes it, and we have no such permissive statute in this state. The question here involved has been repeatedly decided by our own court and our Court of Appeals. In Dusing v. Nelson, 7 Colo. 184, 2 Pac. 922, this court, speaking on this point, page 186, said: “If the order entered in a cause does not put an end to the action, but leaves something further to- be done before the rights of the parties are determined, it is interlocutory and not final. To- be final it must end the particular suit in which it is entered.” This case has several times been cited with approval by this court and our Court of Appeals. Rice v. Van Why, 49 Colo. 7, 111 Pac. 599; County Court v. Eagle Rock Co., 50 Colo. 365, 371, 115 Pac. 706; Goodknight, Admr. v. Harper, 70 Colo. 41, 44, 197 Pac. 237; Peters v. Peters, 82 Colo. 503, 507, 261 Pac. 874.
Hagerman v. Moore, 2 Colo. App. 83, 29 Pac. 1014, was an action brought upon a contract against three persons. It was dismissed as to only one of the defendants against whom rights were claimed. Judge Bissell in that opinion stated that if the rule- were otherwise than that announced in the Dusing case, supra, there would be two
It would seem that no further discussion or citation of authorities is necessary, but we desire to' cite and briefly comment upon some other decisions which bear upon the question here involved. In the opinion in City of Batesville v. Ball, Ann. Cas. 1913C, p. 1317, there is a note in which various decisions’ are commented upon in line with our own decision in Dusing v. Nelson, supra. It is apparent from a reading of the complaint in the action now before us that there are two inseparable parts or parcels of the case: the first and main one being the allegations of the plaintiff Boxwell tending to show, if true, that the defendant Morgan and his company had caused him serious losses as the result of Morgan’s frauds practiced upon him; the other part of the case, which is inseparable, is the alleged receipt by the defendant bank from the defendant Morgan of moneys in payment of his note to the bank, which at the time of the receipt thereof the bank knew in equity belonged to the plaintiff. In no event could the defendant bank be held liable until and unless the plaintiff has established his cause of action as against Morgan and recovered a judgment against him. It would be idle, therefore, for this court, even if the order or judgment here in question constituted a final judgment, to pass upon the part of the case which is now before us, because the defendant bank’s liability, if any,
Doubtless there are cases to the effect that where there are two' or more parts or parcels of a cause', wholly distinct one from the other, and severable, a writ of error may lie to a judgment of one part before the other is determined, but there is no case to which our attention has been called, nor has our search revealed one, which holds that where, as in the case at bar, there are two parts of a cause inseparably connected one with the other, a review of an order of dismissal as to one can be had before the other is determined. In 2 R. C. L., under the title “Appeal and Error,” beginning at pag'e 39, sections 21 to 25, both inclusive, will be found a discussion of the question here involved, and many cases are cited. Section 24 states the general rule, to which many decisions are cited, that a judgment or decree is not final which settles the case as to a part only of the defendants.
In 1 Freeman on Judgments (5th Ed.), p. 43, § 26, the learned author says: ‘ ‘ Sometimes several issues of law and of facts are presented for the consideration of the court in the same s-uit or proceeding’. In such case there can be no judgment from which an appeal can be taken while it remains necessary for the court to deter
It follows that the order of the district court dismissing this action as to- the defendant bank was not a final judgment to which a writ of error lies. It therefore is dismissed at the costs of the plaintiff in error. The dismissal, however, will not be taken to preclude the rig’hts of the parties to raise the particular questions presented in this, record. Further proceedings below, if any, must not be inconsistent with the views expressed in this opinion.
Writ of error dismissed.
Me. Justice Hilliabd dissents.
Dissenting Opinion
dissenting.
As I understand the opinion of the court it is based upon the. proposition that we ought not examine the ruling of the trial court upon the demurrer to the amended complaint as amended, because, it is said, there is no final judgment before us. To that proposition I shall address myself, but in passing! it may be noted that the court has
I have examined the authorities which the court holds sustain the opinion, but shall not undertake to review them here. It suffices to say that in my judgment they have no bearing upon the issue presented in the case at bar as the matters presented in them were of manifestly different character. Surely because-, as in Dusing v. Nelson, 7 Colo. 184, 2 Pac. 922, an action is dismissed for lack of prosecution as to one of the three parties to a contract, all being jointly liable, it does not follow that where a number of persons, severally liable, are sued, that one of them, successful upon general demurrer, has not obtained a final judgment in his favor when the plaintiff fails to plead over and elects to- stand upon his complaint. Nor is the judgment here involved any less final because in Goodknight v. Harper, 70 Colo. 41, 197 Pac. 237, an order of the county court sustaining an administrator’s intermediate report was held not to be a final judgment. The test has always been, as was held in Dusing v. Nelson, supra, to- be whether the order entered in a cause- puts an end to the action. If it does, as between the parties to that order, then, I submit, it is a final judgment to which a writ of error will lie, for this court should concern itself with the judgments before it for review, and not speculate upon the possibility of perhaps being obliged at some future time to review other judg
It seems to me the difficulty the court has failed to overcome is the proper significance of the word “parties.” Because it has been held that appeals cannot be taken piecemeal and that the reviewing court should determine all controversies between the parties at one time, the court is of belief that no matter how many parties there may be to an action, it must be tried below as to all of them before one can seek a writ of error. That, I apprehend, puts a construction upon the meaning of the word “parties” as may very effectively prevent many litigants from ever' obtaining a final determination of their controversies. For example, as may be the fact here, a plaintiff may join many defendants, but would not care to try his case if his complaint were finally determined not to state a cause of action against one of them.
A practical difficulty which the plaintiff will encounter with the law established by the court is, that if he shall choose to- pursue his action against the remaining defendants below, and shall prevail, that he must, - if he wants to hold the bank, sue out a writ of error to review what must then, I suppose, have become a final judgment in favor of the bank, although why it should be more final then than now I am unable to discover. Or it may be that his endeavor to state a cause of action against the
Is the plaintiff within the limits of the law in bringing his cause here at this time? The Code of Civil Procedure supplies the answer. Section 80, Code ’21, provides: “When a demurrer is decided, either in term time, or va.cation, the court or judge shall immediately cause the decision thereof to be entered in the reco,rd, and may proceed to final judgment thereon in favor of the successful party, unless the unsuccessful party shall plead over1 or amend upon such terms as shall be just, and the court or judge may fix the time for pleading over and filing amended pleadings; and if the same be not filed within the time so fixed, judgment by default may be entered as in other cases.” Section 425, Code ’21, provides: “Writs of error shall lie from the supreme court to every final judgment, decree or order of any county court, district court or juvenile court, in all actions, suits and proceedings. ” Certainly, under section 80, a final judgment was properly to be entered against the plaintiff when he refused to plead further and elected to stand on his
Our inquiry' into the provisions of the Code need not, however, cease with a consideration of the sections mentioned. Section 243, Code ’21, is directly applicable to the facts here and should be held to be controlling. That section reads: 1 ‘ In an action against several defendants, the court may, in its discretion, render judgment for or against one or more of them, allowing the action to proceed against the others, whenever a several judgment is proper.” It will not be questioned, I presume, that the issues below would have made a several judgment proper, and it therefore follows that the writ of error here should be disposed of upon its merits. The very point was before the- Supreme Court of California in Rocca v. Steinmetz, 189 Cal. 426, 208 Pac. 964. That was a tort action against two- defendants and the trial court having determined that no action was stated against one of the defendants rendered judgment in his favor. From this judgment the plaintiff appealed and upon motion to dismiss the appeal the court overruled an earlier and contrary decision (Nolan v. Smith, 137 Cal. 360, 70 Pac. 166) upon the ground that no consideration had been there given to the provisions of section 579, California Code of Civil Procedure. That section of the California Code is identical with our section 243 above set out. Referring to the Nolan case, and discussing the one before it, the California court said: “The present action is unquestionably of a character in which a joint or several judg*ment could be rendered. The court, upon finding* that one of the parties is- not liable in the action, could render a judgment in his favor, and then leave the action to proceed against the other parties. That was the course taken by the court in the present case. It held that the allegations against D. H. Steinmetz were not sufficient to
It may be that on some occasion this court will have before it a record from which it will be apparent that two or more of the parties below are in like situation with respect to some final judgment or order, and we could then with propriety determine whether all should
Lead Opinion
PLAINTIFF Boxwell brought this action against Ernest A. Morgan, the Greeley Land and Live Stock Company, the Greeley Union National Bank and other defendants who, if served with summons, did not appear in the action. The original complaint was amended and this amended complaint was further amended. As thus amended this pleading, in substance, states that in the year 1924, plaintiff Boxwell resided in the state of Iowa, and was there engaged in breeding Hereford cattle and other live stock, was familiar with values and productivity of Iowa lands but not with similar Colorado properties or with irrigation farming, all of which was well known by the defendant Morgan and the defendant land company, which was organized by and under his full control. In that year plaintiff was in Greeley, Colorado, and there met Morgan and, as the result of fraudulent representations, was induced to enter into a written contract with him and to sign a note and to engage with Morgan and his company in carrying on the live stock business on the ranch property in Weld county thus acquired, all of which was to the great loss and damage of the plaintiff.
The relief asked by the plaintiff is rescission and cancellation of the contract and note, and damages to him resulting from defendant's fraud. In the district court the defendants who appeared in the action, with the exception of the Greeley bank, filed their respective motions and special and general demurrers to the amended complaint, all of which were overruled, the trial court holding that as to these defendants the amended complaint stated a good cause of action. The defendant Greeley bank filed its own separate motions and special demurrers attacking the complaint, all of which were *576 overruled. Thereupon the bank filed its general demurrer to the amended complaint as further amended, which the court sustained. The plaintiff declining further to amend or change his amended complaint, the court, after sustaining the general demurrer thereto, dismissed the action as to the bank on the latter's motion therefor. The present writ of error is by the plaintiff Boxwell against the Greeley bank as sole defendant in error, having for its object a review only of the order or judgment of the district court dismissing the action as to the bank.
After the district court had sustained this general demurrer of the bank to the plaintiff's complaint as amended, and dismissed the action as to the bank, it was orally stipulated by the parties concerned that if plaintiff should, as he did, elect to stand upon his amended complaint and should thereupon prosecute a writ of error from the judgment dismissing the action as to the defendant bank, which he has done by the present writ of error, the trial of issues to be thereafter joined in the said cause as against the other defendants, should be continued from time to time until the Supreme Court should determine such writ of error; and that such dismissal, in so far as it affects the defendant bank, is without prejudice to plaintiff's right to proceed in the case as against the remaining defendants, other than the bank, as he may be advised.
This court hitherto has not been confronted with a situation exactly like that which is exhibited by this record. There is no charge in the complaint that the defendant bank had any connection with, or any knowledge of, the alleged frauds practiced by Morgan and his company upon the plaintiff Boxwell. The bank is proceeded against on the alleged ground that several years after the perpetration of the alleged fraud of the defendant Morgan upon the plaintiff, the bank received from this defendant, as payment of his note to the bank as payee, moneys which in equity belonged to the plaintiff, being part of the money of which plaintiff had been defrauded *577 by the defendant Morgan, all of which frauds the bank knew at the time Morgan paid his note.
[1-3] It has been repeatedly held that a reviewing court has the inherent authority to regulate its jurisdiction so as to prevent successive appeals from a judgment. 3 C. J., p. 348, § 97. Although the defendant in error bank in this writ of error has discussed the merits, it has observed in its brief that the writ of error is premature. Doubtless it may be true that both parties upon this review desire to have this court determine the propriety of the order of the district court dismissing the action as against the bank. Under the almost unbroken line of decisions we cannot with propriety do so, because the order or judgment, which the plaintiff in error has brought up for review, is not a final judgment, but interlocutory, to which neither an appeal nor writ of error lies unless some statute expressly authorizes it, and we have no such permissive statute in this state. The question here involved has been repeatedly decided by our own court and our Court of Appeals. In Dusing v.Nelson,
Hagerman v. Moore,
It would seem that no further discussion or citation of authorities is necessary, but we desire to cite and briefly comment upon some other decisions which bear upon the question here involved. In the opinion in City of Batesvillev. Ball, Ann. Cas. 1913C, p. 1317, there is a note in which various decisions are commented upon in line with our own decision in Dusing v. Nelson, supra. It is apparent from a reading of the complaint in the action now before us that there are two inseparable parts or parcels of the case: the first and main one being the allegations of the plaintiff Boxwell tending to show, if true, that the defendant Morgan and his company had caused him serious losses as the result of Morgan's frauds practiced upon him; the other part of the case, which is inseparable, is the alleged receipt by the defendant bank from the defendant Morgan of moneys in payment of his note to the bank, which at the time of the receipt thereof the bank knew in equity belonged to the plaintiff. In no event could the defendant bank be held liable until and unless the plaintiff has established his cause of action as against Morgan and recovered a judgment against him. It would be idle, therefore, for this court, even if the order or judgment here in question constituted a final judgment, to pass upon the part of the case which is now before us, because the defendant bank's liability, if any, *579
to the plaintiff depends altogether upon plaintiff's success as to that part of the case which seeks recovery of judgment against Morgan. In Owens v. Mitchell,
[4, 5] Doubtless there are cases to the effect that where there are two or more parts or parcels of a cause, wholly distinct one from the other, and severable, a writ of error may lie to a judgment of one part before the other is determined, but there is no case to which our attention has been called, nor has our search revealed one, which holds that where, as in the case at bar, there are two parts of a cause inseparably connected one with the other, a review of an order of dismissal as to one can be had before the other is determined. In 2 R. C. L., under the title "Appeal and Error," beginning at page 39, sections 21 to 25, both inclusive, will be found a discussion of the question here involved, and many cases are cited. Section 24 states the general rule, to which many decisions are cited, that a judgment or decree is not final which settles the case as to a part only of the defendants.
[6] In 1 Freeman on Judgments (5th Ed.), p. 43, § 26, the learned author says: "Sometimes several issues of law and of facts are presented for the consideration of the court in the same suit or proceeding. In such case there can be no judgment from which an appeal can be taken while it remains necessary for the court to *580
determine some issue of law or of fact." In section 28 the author quotes the following from the decision of the Supreme Court of the United States in Heike v. U.S.,
It follows that the order of the district court dismissing this action as to the defendant bank was not a final judgment to which a writ of error lies. It therefore is dismissed at the costs of the plaintiff in error. The dismissal, however, will not be taken to preclude the rights of the parties to raise the particular questions presented in this record. Further proceedings below, if any, must not be inconsistent with the views expressed in this opinion.
Writ of error dismissed.
MR. JUSTICE HILLIARD dissents.