12 Colo. App. 461 | Colo. Ct. App. | 1899
Defendants Jackson and associates claimed to be the owners of the Grace lode mining claim, situate in the Cripple Creek mining district, and made application in the United States land office to secure a patent therefor from the government. Plaintiffs, as owners of the Golden Wedge lode mining claim, filed a protest within a proper time against the issuance of such patent, asserting a superior and prior right to a parcel of ground which was in conflict between the two lode claims. This suit was instituted in support of said protest, and to maintain the right to the possession of the ground in conflict,
Motions of this character are addressed to the sound discretion of the trial court, and unless it manifestly appears that there has been an abuse of discretion, or that it has been arbitrarily exercised, this court cannot interfere.' The burden is upon one who seeks the benefit of such a motion to show
The question as to whether or not the neglect or want of diligence of plaintiffs was of such an excusable character as to entitle them to the relief asked was one of fact, and it was determined adversely to them by the court. This should have great weight with this court, and an examination of the affidavits upon which the hearing was had, satisfies us that there was not only no abuse or arbitrary exercise of discretion in the action of the court, but that it was correct. An attempt was made to show that it was the negligence of the sheriff and not of the parties which occasioned the nonservice of the summons. We do not think that this was at all satisfactorily shown. It was also sought to be claimed that the delay was occasioned by an inability to ascertain the places of residence of the defendants. Neither of these excuses is sustained by a consideration of the affidavits. The strongest showing made in reference to the first contention is by plaintiffs ’ attorney, who alleges in his affidavit that in 1896, shortly after the sheriff entered upon the duties of his office, which must have been, therefore, in January of that year, he visited the sheriff’s office, and found a person, not the sheriff, in charge, of whom he made inquiry as to the service of said summons, and whom he informed that service was desired to be had; that he then offered to pay the fees for the service of the summons, and was informed that it was not then known how much the fees would amount to, because it was not known where the defendants resided. Nine or ten months elapsed thereafter, and yet it is not shown that during that time any further effort was made by or on behalf of plaintiffs to secure service of summons. No further inquiry was made of, or instructions given to the sheriff, and no further attempt was made to ascertain from the sheriff what the amount of his fees would be, nor to tender them to him. On the contrary,
Under these circumstances we think that the action of the court was manifestly not an abuse of discretion, and was in accord with a wholesome rule of court, and its judgment will not be disturbed.
Affirmed.