57 Colo. 281 | Colo. | 1914
delivered the opinion of the court:
This action was instituted upon February 3, 1908, by J. F. and James D. Mowry, copartners, subcontractors, against W. H. Crawford as the original contractor, The Montezuma Valley Irrigation District and The Empire Construction Company as owners, or having an interest in certain canals, reservoirs, etc.-, and against sundry other persons, who were alleged to be subcontractors, materialmen, etc., under the original contractor, Crawford. The purpose of the suit was to secure a judgment against Crawford for services rendered and materials furnished upon, and used in, the construction of the canal and reservoirs, to have the rights of all parties determined, to have a lien upon these properties, foreclosure accordingly, etc. Numerous subcontractors and alleged lien claimants filed answers and cross complaints. On February 29th, Crawford filed a motion to make the complaint more definite. On March 9th this motion was heard, at which time Crawford was represented by attorneys Wheeler and Weiser. The motion was overruled, and he was given until March 16th to answer. On March 9th The Empire Construction Company filed its answer to the complaint, and answers to the cross complaints of- sundry subcontractors. On March 12th the irrigation district filed its answer to the complaint, alleging its ownership of the property; that it was a public corporation, to-wit, an irrigation district, etc., upon account of which its property was not subject to mechanics’ liens, etc. On March 16th the defendant Crawford filed his answer and cross complaint, in which he sets forth an alleged cause of action against The Empire Construction Company for work done and
The decree sets forth, that Crawford entered upon the construction and completion of the canals and reservoirs in question under two contracts with The Empire Construction Company; that in violation thereof he abandoned the work before completion; that at the time of this abandonment there was due him from the con
The claims of about thirty subcontractors were established in the decree against Crawford, and fixed at certain amounts. Individual judgments against Crawford for these sundry amounts were inserted and decreed to be liens against the moneys in the hands of the construction company found to be owing Crawford. The decree recites that within ten days from its date The Empire Construction Company pay to the clerk the balance found due on the contracts, viz, $7,415.02, on which liens were established, etc., upon its failure so to do that judgment be entered against it for this amount as of the date of the decree; that upon the payment of this sum to the clerk, the construction company be released and discharged from all further liability upon account thereof; that upon receipt of this money the clerk pay, first, the costs of suit, second, all liens established as first-class, third, fifty-three per cent upon all liens established as second-class, and retain the balance subject to the further order of the court; that the amount of said payments be credited upon the judgments against Crawford; that as to defendants, Graham, Morrison and Brimhall, the hearing be continued until the next term. The decree also contains a judgment against Crawford, in favor of the construction company as follows, “That
An appeal appears to have been allowed the defendant Crawford from this decree, amount of bond fixed, and time given for bill of exceptions, but nothing done thereunder. Upon May 17th following, the money found to be due from the construction company to Crawford was paid into court, in compliance with the terms of the decree, and it appears to have been disposed of as ordered without any exception or objection being made thereto.
Upon May 17th, 1909, at a subsequent term of court and over a year after the date of the decree, and more than six months after the adjournment of the term at which it was rendered, the defendant Crawford filed a motion to set it aside, alleging as his reasons that through misfortune and unusual hardships he was unable to be present at the trial, by himself or counsel; that both he and his attorneys were taken by surprise, and that any seeming neglect on the part of either was excusable; that the cause was not properly at issue; that a part of it was left over, and the case not fully determined; that no final judgment had been entered from which the defendant could take an appeal; that the decree was tentative only, and subject to be annulled by further action of the court; that the judgment and decree was void; that the. court had no jurisdiction of the subject matter, etc.; that he was unable to apply for relief during the term at which the decree was entered and makes this application at the first opportunity, etc. This motion was supported by the affidavit of the .defendant Crawford, which, among other things, states that he was without means when the suit was instituted, but engaged Wheeler and Weiser to appear for him. This is followed by sundry statements pertaining to his finances, and as to why he was not present at the time of the trial; that he was at other points where he had
The construction company moved to strike this mo-, tion from the files. This motion was denied and that portion of the former decree wherein a judgment was entered in favor of. the construction compauy against the defendant Crawford only, was set aside, and Crawford was allowed to file an amended answer and cross complaint against the construction company. The company moved to strike this; this motion was denied. A demurrer was then filed and overruled, an answer with replication and motions followed, thereafter trial was had to the court, which resulted in a judgment in favor of the defendant Crawford against The Empire Construction Company, from which this appeal is taken.
The first question necessary to consider is that of jurisdiction. It is earnestly urged that the original decree was not final; that it was wholly interlocutory and tentative; that a case marshalling liens must of necessity embrace all of them, and declare their status in one decree; that there was no judgment as between Crawford and the construction company, and that part of the
The judgment in favor of the construction company being final, was the court without authority to set it aside at the time it attempted to do so ? As a general rule in the absence of statutory authority (jurisdiction and fraud excepted), courts have ho control over their judgments after the term at which they are rendered, except to make clerical corrections, etc.' — 23 Cyc. 902.
Section 81, Revised Code 1908 authorizes a court to relieve a party or his legal representatives from a judgment taken against him through mistake, inadvertence, surprise or excusable neglect, and when for any cause satisfactory to the court, the party aggrieved has been unable to apply for relief during the term at which the judgment was entered, the court may grant the relief upon application, provided the same is made within six months after the adjournment of the term. Outside of this section there is no method provided for reopening a judgment after the expiration of the term, except in case of a motion for a new trial, as provided by section 231 Revised Code. The appellee does not bring himself within the provisions of this latter section, and was only entitled, it at all, to have it set aside under the provisions of section 81, su,pra. It will be observed that he makes no allegation of fraud, and the record upon which he himself relies, disproves his claim pertaining to jurisdiction. In order to be entitled to the benefits of section 81, supra, his application must be made within a reasonable time after the entry of the judgment, and in any event not exceeding six months after the adjournment of the term. This he did not do, and after the ex
The contention that the construction company waived this question by making a motion to strike, and also by filing its demurrer to the amended answer and cross complaint of Crawford allowed after its motion to strike his motion to set aside the judgment was overruled, and by answering’ to the merits after its motion to strike and demurrer were overruled, is not tenable. The question was one of jurisdiction and for this reason was not waived by pleading to the merits. — Section 61, Revised Code, 1908; Canon City v. Manning, 43 Colo. 144, 95 Pac. 537, 17 L. R. A. (N. S.) 272; Diamond Rubber Co. v. Harryman, 41 Colo. 415, 92 Pac. 922; Car Coupler Co. v. League, 25 Colo. 129, 54 Pac. 642.
The motion to vacate not having been filed within six months after the adjournment of the term at which the judgment was rendered, and it not containing any of the matters referred to which permits its consideration thereafter, it came too late. This makes unnecessary any consideration of the merits of the application, had the motion been made in time. The legislature has seen fit to fix a maximum time in which a litigant, under certain conditions, may be relieved from a judgment, beyond this time the courts have no right to act. For which reasons the judgment is reversed and the causes remanded with instructions to grant the motion of the construction company to strike the defendant Crawford’s motion to set aside the judgment. All costs thereafter made to be taxed against the defendant Crawford.
Reversed.
Chief Justice Musser and Mr. Justice Gabbert concur.