3 Colo. 26 | Colo. | 1876
Lead Opinion
A motion.was made for a continuance, based upon an affidavit made by one of the attorneys of the plaintiffs.
Ownership involves the legal or rightful title, and whether one has a title to property depends upon facts: certain facts must be proven to show title. In an affidavit for a continuance, facts must be set forth with sufficient certainty to enable the court to determine the materiality of the evidence, and to enable the opposite party, if he thinks proper, to admit them and go to trial. •
The affidavit fails to state a single fact which would tend to establish ownership of the property in the plaintiffs. The motion for a continuance was properly refused. McBain v. Enloe, 13 Ill. 76; Moody v. The People, 20 id. 315; Cody v. Butterfield, 1 Col. 379.
The second error assigned is the overruling of. the plain-tiffs’ motion to strike the third, fourth and fifth pleas from the files. The objection is, that they are cumulative and unnecessary, and are waived by the sixth plea, which tenders the same issue, and are sham pleas.
A sham plea is a plea put in for the mere purpose of delay, of matter which the pleader knew to be false. These pleas have no such characteristics ; appear to be true and capable of proof, and the jury have said by their verdict that they are true. It is said that they are cumulative and unnecessary'; that the same facts can be given in evidence under the sixth plea. If we concede this, the question wherein consists the reason for objecting to them is pertinent.
The fourteenth section of the Practice Act declares that “the defendant may plead as many matters of fact in several pleas as he may deem necessary for his defense.
The defendant has done nothing more than avail himself of his privilege. In his third, fourth and fifth pleas he sets out, and we think properly, the special character of his claim .to the possession of the property, the title to which is in dispute.
It is argued that these pleas, being in the nature of special traverse, and not in confession and avoidance, are bad. The only reason assigned by the learned counsel who argued the case is, that the only traversable matter tendered by the issue was the ownership of the property, and that this issue was well tendered by the sixth plea, and that these special pleas incumbered the record.
The real issue was the ownership of the property, and a plea that properly tendered that issue was certainly a proper plea by itself, and if good alone, the fact that another good plea tendering the same issue was filed, would not render bad the first plea.
Counsel admit that a special traverse, in replevin, is proper, and that these three pleas are special traverses, and in that respect are like the sixth plea, and for that reason should be stricken from the files. As we have seen, the statute allows several pleas, and the motion to strike them from the files was properly overruled. Hunt v. Chambers, 21 N. Y. 620; Anderson v. Talcot, 1 Gil. 365; Rogers v. Arnold, 12 Wend. 30; The Mount Carbon Coal and R. R. Co. v. Andrews, 53 Ill. 176; Dayton v. Fry, 29 id. 525; Chandler v. Lincoln, 52 id. 74.
The third error assigned is the overruling the motion to suppress the deposition of R. B. Foster and C. W. Kelsey.
First. Because the commissioner who took the deposition Was appointed by the clerk of the district court. It was held by this court, in Ford v. Rockwell, 2 Col., that such appointment was authorized by the statute.
Second. That the plaintiff had no proper and sufficient notice to take the depositions. Notice was given that the defendant would sue out a dedimus potestatum, directed to P. C. Bush, of the town of Elizabethtown, in the county of Denton, State of Texas, as commissioner to take the depositions of R. B. Foster and C. W. Kelsey, of
The statute provides that the time and place of taking the depositions .shall be fixed by the officer taking the same. It does not require that the place where the deposition will be taken shall be stated in the notice. The notice given fully met the requirements of the statute ; and a substantial compliance in all that is necessary. County of Green v. Bledsoe, 12 Ill. 267; Curtis v. Martin, 20 id. 572. The commissioner is directed to examine R. B. Poster and O. W. Kelsey. He certifies he has examined the persons named as witnesses, and each for himself answers that his name is R. B. Poster and C. W. Kelsey, and the court will not assume they had any other name. The stipulation of counsel,. made part of the record in this case, shows the dedimusi,o be under the seal of the proper court.
It is not necessary that the issues be made up prior to the issuing of a dedimus and taking depositions. All that is necessary is, that the cause be depending. Rev. Stat., p. 311, § 8.
Sufficient appears to show that the depositions were, taken, in this case, and .with reference to the subject-matter of the suit. Rockford, R. I. and St. Louis R. R. Co. v. Coppington, 66 Ill. 510; Voice v. Lawrence, 4 McLean, 205.
The fifth error assigned is in sustaining an objection made to the questions propounded to the witness, Lockhart T. Grlenn: “ Can you state whether that property described in. the record is the same for which this action is brought?”
“Do you know whether or not the property described in. the record is the same for which this action is brought ? ”
What record is referred to does not appear. The questions are not leading, but immaterial and irrelevant, and inasmuch as the facts sought were elicited from the witness by other questions, the plaintiffs were not prejudiced by the ruling of the court.
The sixth error assigned in this case is the admitting in evidence certain proceedings'in attachment in suits of Joh
An alias writ is a second or further writ which is issued after the first writ has expired, ■ and is authorized by statute. Rev. Stat., p. 63, § 31; p. 64, § 35, and p. 501, § 6.
The alias writ was a good writ. What the first or original writ was does not appear in the record. The alias writ was properly admitted in evidence.
The seventh and eighth errors assigned are to the refusal of the court to let the plaintiffs prove a conversation between the coroner and the defendant, at the time of the levy of the writ of replevin, as to the time it was levied.
♦If offered for the purpose of contradicting the officer’s return, it was properly rejected; and if for any other purpose, it was not material or relevant, having no tendency to prove or disprove any issue in the case.
The ninth assignment of error relates to the admission in evidence of the.depositions of Foster, Kelsey and Shipley, for the reason that such testimony contradicted the record already in evidence, of a judgment in the case of Doane et al. v. Lockhart T. Glenn and George O. Talpey, interpleaders. This judgment was introduced to show title to the property in the plaintiffs ; and the objection to this evidence is based upon the assumption that the judgment was in full force and effect.
• The record shows that at the time the judgment was offered in evidence, the plaintiffs in that suit had sued out a writ of error to the supreme court of the United States, and had given bond and security as required by law, to make the writ of error operate as a supersedeas. That such proceedings had the effect of staying execution upon the judgment, or the right to bring action upon the judgment, is conceded by counsel in argument; but that for all other purposes the judgment is operative.
We are aware there are decisions at variance with this opinion, but it is fully sustained by authority and reason. Woodbury v. Bowen, 13 Cal. 634; McGarrahan v. Maxwell, 28 id. 91; Thornton v. Mahoney, 24 id. 569; Byrne et al. v. Prather, 14 La. 663; Turnbull v. Cureton, 9 Martin (O. S.), 37, 68; United States v. Pacheco, 20 H. 263; Ambrose v. Weed, 11 Ill. 488-491; Helmer v. Boone, 6 J. J. Marsh. 353, 356; Hayes v. Ordway, 52 N. H. 284; Taylor v. Shew, 39 Cal. 536; Sherman v. Dilley, 3 Nev. 21; Griffith v. Seymour, 15 Iowa, 33; Campbell v. Howard, 5 Mass. 376.
The judgment being suspended was not evidence of title in the plaintiffs. The depositions were properly admitted.
The judgment not being evidence of title in the plaintiffs, the instruction of the court, that if the judgment obtained by the plaintiffs in the interplea is pending on error, operating as a supersedeas, then such judgment is no longer evidence of any right in the plaintiffs, was correct.
As the plaintiffs were in no way prejudiced by the introduction in evidence of the order of the court staying the proceedings in the cause after judgment, we express no opinion upon the legality of this order.
The gist of this action is the traverse of the property of the plaintiffs, and it devolved upon them to show -a title to the property in themselves.
The court was right in giving the instructions that it did, and in refusing those asked by the plaintiffs.
The judgment is Affirmed.
Dissenting Opinion
dissenting. The following facts are disclosed by the record.
On the 14th day of December, 1870, John W. Doane, Patrick J. Towle and John Roper sued ont an attachment against the property of Oliver S. Glenn and Rufus E. Talpey, which was levied upon the property, and served personally on one defendant on the 14th of December, 1870, and on the other, the 28th day of July, A. D. 1871. At some time, but when does not appear, Lockhart T. Glenn and George O. Talpey filed their interplea in that suit, averring the writ by which the property in question had been taken, and averring that they were and had been the owners of that property from May 27th, 1870, and were entitled to the possession thereof; that it was unlawfully detained by J L. Brush, as sheriff, and praying that the property be adjudged to them. To this interplea the plaintiffs in the suit, at the December term, 1870, plead that the property “levied upon by virtue of said writ of attachment * * * and described in the interplea was not the property of Lockhart T. Glenn and George O. Talpey at,” etc., and they were not entitled to the possession, etc.
On the 22d day of July, 1871, at the trial of the attachment suit, the jury found a verdict for the interpleaders. On the 27th of July, after a motion for a new trial had been denied, judgment was rendered, “that the property taken by virtue of the writ of attachment in this cause be delivered to the said Lockhart T. Glenn and George O. Talpey, and that a writ of retorno Tiabendo be awarded.” On the 25th day of August, 1871, a notice of this judgment was served on Jared L. Brush, the sheriff, who was in possession of the property 'and is the defendant at bar, and the property was demanded of him by the interpleaders, who are the plaintiffs at bar, and was not delivered; at this time the plaintiffs’ alleged cause of action, upon such demand and refusal, had its inception, and on the same day the writ of replevin herein issued at the suit of Lockhart T. Glenn and George O. Talpey, against Jared L. Brush,
In his fifth plea Brush seeks to justify his detention of the property under a writ of attachment sued out by John V. Parwell & Co., against the property of Oliver S. Glenn and Rufus E. Talpey, on the 29th day of August, 1871, and levied on the property in question on that day.
This he cannot do, because the Parwell writ had not been issued at the time of the demand of the property of him on the 25th, nor when that writ was served personally on him, the 28th. It is clear that the Parwell writ is plead in bar of the original detention at a point of time when it had no existence. Under this state of pleading, the Farwell writ cuts no figure, because the rights of the parties under the pleas must be adjusted according to their respective interests in the rem when the plaintiffs’ alleged cause of action arose. The Parwell writ not being in existence then, cannot legitimately affect the rights of the parties then; it was, therefore, improperly received in evidence after objection ; it may, for aught I can see, have influenced the verdict; at any rate it is not clear that it did not- influence the verdict to the plaintiffs’ prejudice. I think error well assigned in respect to its admission.
It remains to be considered whether Brush can justify the detention of the property, by virtue of the attachment in the Doane suit referred to. We have seen that judgment had gone in favor of the interpleaders in that suit, who are the plaintiffs at bar, and they base their claim to the property in this case upon the judgment in that. It is claimed that Brush, the sheriff, v^as not a party to the Doane suit, and therefore was not bound by the judgment in it. By reference to his third, and fourth pleas it will be seen that he justifies the detention of the property under the attachment in that suit, and avers that he held it to abide the- judgment in that suit. According to his own pleas, he is bound by that judgment. As the mere custo
After the judgment, by the order of the court in that case, Doane & Co. were given thirty days to procure a writ of error and supersedeas, and it was ordered “ that all proceedings upon the said judgment * * * be stayed during the said thirty days.” I assume this order was made the day the judgment was given, in the absence of any thing showing when it was made. It is claimed the court had no power by order to suspend its judgment. The question arising upon this claim is important. There is no statute of Colorado authorizing the practice. Has the court at common law this inherent power? At common law the mode of suspending the execution of a judgment was by a writ of supersedeas. It is true that a court of record at common law has control over its judgments during the term at which they are granted, but it will be seen that this power exists for certain purposes, viz.: correcting the judgment in respect to clerical errors, and in some cases, to alter, revise or revoke it; but in such case it must be made to appear that the entry, as made, does not conform to the intention of the court when it was ordered. A judgment may be vacated for irregularity, or because it is a nullity ; and a judgment by default regularly taken, proper in form, under certain circumstances may be set aside to let in a meritorious defense at the term at which it is rendered, upon proper showing. # This I believe to be the extent to which the control of a court over its judgments, independent of statutes, has ever gone. I have not been cited to any case, nor have I found one, where a court of record having jurisdiction after the regular course of procedure, after the hearing and deliberations had thereon, has given judgment proper in form, in conformity with the intention,
An interpleader in an attachment suit, having judgment in his favor, would be without any adequate remedy, the bond in such case only running to the benefit*of the original defendant. If a court may thus suspend its judgment for thirty days, it may for a longer time, and in fact indefinitely postpone its execution. It will hardly be contended that the court had the right to incorporate the stay contained in this order in its judgment, how then can it be maintained that it had authority, after judgment, to make the order suspending It. It is my opinion that the court had no power to make the order for a stay of proceedings on the judgment. If it was without authority to make such order, the order was void. What is said of a void judgment may be said with equal propriety of a void order. By it no rights are divested; from it no rights can be obtained. It neither binds nor bars any right of property. This order purported to be in force when the plaintiffs’ cause of action herein is claimed to have arisen — the 25th of August, 1871 — when the property was demanded; being admitted in evidence, the jury had a right to infer that it was then in force, and that, by force of the order, the plaintiffs then had no right to the possession of the property, and therefore no right to recover the possession in this action.
It is to be determined whether the judgment of the district' court was superseded by the writ of error to that court. It is claimed that this judgment was superseded by an order upon the exceptions that the writ might operate as a supersedeas. This order was not put in evidence, and there is no evidence of the order, nor of its contents, except inference from the memorandum of the clerk indorsed on the writ, and it might, therefore, be held that there is no evidence of any order having been made by the judge upon the exceptions that the writ might operate as a supersedeas. Considering, however, that this order was made, in proper form and substance, still the case is barren of any proof that the writ of error operated as a supersedeas: Something more than the order of the judge upon the bill of exceptions was necessary to effectuate the supersedeas, to wit: a bond.
Section 48 of the Practice Act provides that “ no writ of error shall operate as a supersedeas, unless the supreme court, or, if application be made therefor in vacation, some justice of the supreme court, * * shall order such writ of error •to be made a supersedeas ; nor until' the party applying for such writ shall file a bond in the office of the clerk of the supreme court,” etc. Now, it does not appear in evidence that any such bond was filed. Without it, under our statute, a supersedeas did not go with the writ of error. The memorandum of the clerk does not recite the filing of a bond. I do not believe the court can legitimately infer from, the memorandum that the bond was filed. I do not feel at liberty by inference to interpolate in the clerk’s memorandum a statement of the fact of the filing of the bond. That such inferences cannot be invoked to support like ministerial acts of a sheriff by supplying by induction omissions in his return is well settled. The proper evidence of the filing of the bond, without which no supersedeas can go
On the 26th day of March, 1872, a writ of error to the supreme court issued to remove its record and judgment in the Doane case into the supreme-court of the United States. On the 5th day of November,*1873, the cause at bar was tried and judgment rendered. On the trial, the court, among other things, instructed the jury:
“It J. W. Doane & Co. have prosecuted a writ of error to the supreme court of the United States to reverse the judgment which was given in favor of the plaintiffs as their interpleaders in the attachment suit, and have given a bond to prosecute such writ of error, the alleged transcript of which was read in evidence, then such judgment is no longer evidence of any right in the plaintiffs, and you are to cast the same out of your consideration.”
This instruction was erroneous in any view I can take of the case. The writ of error to the supreme court of Colorado and the bond did not operate as a supersedeas under the statute, for the reason that there was not a scintilla of proof to show that the writ of error had been served as provided in the 23d section of the Judiciary Act of 1789, which was in force when this instruction was given. The last clause of section 22 of that act says that every justice signing a citation on any writ of error shall take good and sufcient security that the plaintiff in error shall prosecute his writ to effect, etc. Section 23, referred to, enacts:
“ That a writ of error, as aforesaid, shall be a supersedeas and stay executions in cases only where the writ of error is served Toy a copy thereof being lodged for the adverse party in the cleric’ s office, where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of.”
There is no evidence that the copy of the writ was ever
In the course of the proceeding in the case at bar, a motion was made to suppress the depositions of R. B. Foster and O. W. Kelsey, which had been taken on commission in Texas. One ground of the motion was based on the contradictory character of the commissioner’s return, which in its caption showed that the witnesses were sworn in the case at bar, and in the certificate at the end of the report, showed they were sworn in some other action. It is not probable they were sworn in two actions. It is impossible to say -from the report of the commissioner in which action they were sworn. I cannot determine from this contradictory report that the examination of these witnesses were taken according to the provisions of the statute of this most material matter of the administration of the oath to them. Until that appeared so that it could be judicially determined, these depositions were not competent evidence in my opinion. The motion to suppress, I think, should have been granted, instead of overruled, for this reason; and the defendant’s objection at the trial to their being received in evidence should have been sustained^ instead of being overruled, for the same reason.
The judgment, in my opinion, should be reversed.
Note. — The plaintiff in error filed a motion for a rehearing in the above cause, upon the following grounds:
fflrst. The court • holds the attachment writs offered in evidence were properly admitted, because they tended to prove a special property in the
Motion fox rehearing denied.
