Christy v. Campbell

36 Colo. 261 | Colo. | 1906

Mr. Justice Steele

delivered the opinion of the court:

Judgment was rendered in the district court of El Paso county against Robert A. Christy and the sureties upon a bond given to carry the case by appeal from the county to the district court. The defendant Christy prayed, and was allowed, a separate appeal to the court of appeals; the other judgment debtors were not made parties in the court of appeals. A motion to dismiss the appeal was made, and denied with leave to renew on final hearing.

Section 400 of the code-authorizes a separate appeal, and provides that for the purposes of appeal the party appealing shall be permitted to use the names of all persons against whom judgment was rendered, if necessary. It is urged that, although one person may appeal when a joint judgment is rendered, all persons ag’ainst whom judgment was rendered should be made parties in the appellate court. The code authorizes the use of the names of all such persons if necessary. No necessity for the use of the names of such persons appears to be present in this case; and the motion to dismiss the appeal will be denied.

The complaint sets forth, in substance, that the plaintiff was the owner of a one-tenth interest in a certain mine in the Cripple Creek district; that the defendant was also the owner of an interest therein ; that the defendant came to the plaintiff and informed him that a person, whose identity he did not disclose, was willing' to buy the said lode for the sum of three thousand dollars, fifteen hundred dollars in cash, the balance to be paid in mining' stock of the value of fifteen hundred* dollars; that the defendant also stated to plaintiff that he was willing to sell his interest in said property upon the said terms, and that he believed the other owners, were also willing to> sell on said basis; that the defendant represented that the said prospective purchaser was unwilling to pay more for the said property, and that he, the defendant, believed the amount offered a fair price for the property and that no better price could be obtained therefor; that at the time of the making of said representations the said proposed purchaser had offered and agreed to pay the defendant, for himself and associate owners of said property, the sum of forty-five hundred dollars cash, therefor; all of which the defendant well knew, but which he concealed from plaintiff; that the mining stock mentionéd was of no value, which fact the defendant well knew; that the statements made by the defendant were false and were known by defendant to be false, and were made by him for the purpose of cheating and defrauding plaintiff; that, relying upon said representations, the plaintiff executed a deed to defendant for his interest in the property upon the terms, proposed’ by defendant; that he received one hundred and fifty dollars in cash, but that said mining stock was never delivered to him; that thereafter the property was sold * for the sum of forty-five hundred dollars cash to the same person who. had previously offered defendant said sum. The prayer is for judgment for three hundred dollars, being one-tenth of the sum of forty-five hundred dollars, less one hundred and fifty dollars.

The complaint, we think, states a cause of action.

None of the testimony taken on the trial appears in the abstract. The defendant recalled a witness for further cross-examination, and propounded one or two questions, answers to which the court did not receive. These questions and the objections, and the rulings of the court thereon* are copied from the bill of exceptions into the abstract.. This was offered as a foundation, so it is said, for impeachment of one of plaintiff’s witnesses, and error is assigned upon the ruling of the court rejecting the testimony; but as this is the only testimony before us, we cannot say whether it was relevant or not, and cannot, therefore, say that the court committed error.

The instructions offered by the defendant and refused and not given relate to the effect of testimony, and as the defendant has not copied into the abstract any portion of the bill of exceptions, except what we have mentioned, we cannot review the action of the court in refusing the instructions.

The court erred, it is said, in the giving of certain instructions. As the objections to these instructions are not mentioned in the brief of' counsel, we conclude that the assignment of error in relation thereto1 has been abandoned.

The jury assessed the plaintiff’s damages at the sum of three hundred dollars, being one-tenth of the amount received for the property, less the amount the plaintiff received. As no error has been pointed out, we must affirm the judgment.

Affirmed.

The Chief Justice and Mr. Justice Campbell concur.