20 Colo. 167 | Colo. | 1894
Lead Opinion
delivered the opinion of the courL
By the pleadings the official character of the defendant in error, Clement, was put in issue by direct allegation and positive denial. To maintain the plea of justification it was therefore incumbent upon the defendants to establish such official character. They having failed to introduce any proof in support thereof, the plaintiff undertook to prove affirmatively that Clement at the time of the levy was not a deputy sheriff of Garfield county, but the court in response to objections interposed by the defendants excluded all evidence upon this issue. This ruling was based upon the assumption that plaintiff had sued Clement in his capacity as deputy sheriff and was for this reason estopped from denying that he was such an officer. Thereupon plaintiff asked permission
To sustain the plea of justification it is admitted that the official character of Clement is material, but it is argued here, as in the district court that proof of such character was not necessary for the reason as it is claimed that plaintiff had sued him as deputy sheriff. The premise upon which the argument is founded is unsound. The fact that plaintiff in the caption o£ his complaint follows the name of this defendant by the words “ deputy sheriff ” does not make the action one against the defendant as deputy sheriff. The word as does not precede such official designation and in its absence the presumption is that he is sued as an individual and that the words “ deputy sheriff ” are merely deseriptio persone». Fryer v. Breeze, 16 Colo. 323.
There is, as we have said, nothing in the body of the complaint to charge him in any official character whatever, and taking the answer and replication we find a distinct issue made upon the official character of this defendant. We have then in addition to the presumption arising from the omission of words showing that Clement is charged as deputy sheriff, which have been held necessary to indicate that the party is sued in an official capacity, a direct issue in the pleadings upon the very point in controversy, i. e., as to whether Clement in seizing the chattels was acting in an official capacity. This was material and essential to the plea of justification. In the absence of proof showing his official character the plea is not sustained. For this error the judgment must be reversed and the cause remanded.
In view of a new trial we deem it necessary to notice a question of pleading raised by the record. This relates to what is termed an “additional answer.” Such a pleading is unknown to the code, but as the plaintiff without questioning the pleadings by motion or otherwise in the first instance,
The other rulings complained of are not such as are likely to arise upon a new trial and need not be considered.
Judgment reversed.
Reversed.
Rehearing
OPINION UPON PETITION EOR REHEARING.
delivered the opinion of the court.
The petition for a rehearing is based upon the claim that there is no bill of exceptions properly before the court for its consideration. As the judgment of reversal heretofore rendered is based upon errors brought before the court bj7 this means alone, the validity of the bill of exceptions is of primary importance.
The contention of counsel is based upon the fact that the time for signing the bill was extended without notice, after the district court had lost jurisdiction of the. case, as it is claimed. The case of Taylor v. Derry, 4 Colo. App. 109, is relied upon in support of this proposition. In that case it was held that an order made without notice extending the time for filing a bill of exceptions, is absolutely void, and beyond the jurisdiction of the court to make.
The facts in that case were as follows: On the 18th day of May, 1892, the plaintiff recovered a judgment. On the same day an appeal was allowed and the defendant given sixty days within which to prepare and tender his bill of exceptions. On the 8th day of the following month of July, upon defendant’s motion, an order was made extending the time thirty additional days. This order was made ex parte, and without notice to plaintiff or his attorney. A bill filed within the time as extended was stricken out in the appellate court upon motion of appellee. The motion in that case was made promptly upon the case reaching the higher court. In this partió
In this case the defendant in error appeared and moved to dismiss the writ of error on the ground that plaintiff in error was not the real party in interest. This motion was withdrawn by stipulation oE counsel; and the defendant in error entered a general appearance and filed written briefs upon the merits of the case. In these briefs no exception was taken to the correctness or proper authentication of the bill of exceptions, but the same was treated throughout as properly a part of the record.
Afterwards the case was set down for oral argument. Upon such argument objection to the bill of exceptions was made for the first time. Assuming that the action of the district court or judge in extending the time was irregular, the irregularity was certainly waived by defendant in error, if it was within his power to do so ; and the existence of this power must be upheld upon both principle and authority. Without doubt the case of Taylor v. Derry, supra, was correctly decided, but in saying that the code requirements as to notice must be complied with to give the court jurisdiction is at best true in a qualified sense only.
Two cases are cited in support of the opinion and an examination shows that neither goes to the extent of holding that the jurisdiction of the court depends upon a notice of a motion. In the first, Mallan v. Higenbotham et al., 10 Colo. 264, the defendants were allowed in the lower court, without notice to plaintiff, to withdraw a demurrer previously filed, and to file instead an answer to the complaint, accompanied by a cross demand against the plaintiff. The court thereupon entered a rule for plaintiff to reply to said answer and cross demand within a stated time. And afterwards, on like motion and without notice, the court entered the plaintiff’s default for failure to comply with the rule, and gave judgment for defendants for the amount of their cross demand. Upon a reviewing of these proceedings this court held that under these circumstances the judgment was unwarranted and er
Can it be doubted that if the plaintiff had complied with the order and filed a replication, that the court would have had jurisdiction to have proceeded and determined the case upon its merits ?
The other case relied upon is that of Nevitt v. Crow, 1 Colo. Appeals, 453. The point determined in that .case, so far as the case has any application to the present controversy, is that the code provision requiring every order entered by court other than during the trial of a cause, to be made upon motion, is mandatory, and, consequently, that an order obtained upon motion of one party, and without notice to the opposite party, shortening the time to take a deposition, was irregularly executed, and a motion to suppress the deposition for that reason should have been sustained. In both of these cases orders made without notice are treated merely as irregularities, and certainly such irregularities may be waived.
The early case of Murphy v. Cunningham, 1 Colo. 467, is directly in point. The record showed affirmatively that the bill of exceptions was not filed until the lapse of nearly sixty days after the adjournment of the term at which the judgment complained of was rendered, and the record failed to show that time was given to present such bill of exceptions. But as the defendant in error joined in error in this court, and assented to the submission of the cause upon written arguments, the court held that it would assume that all matters appearing in the transcript were properly before the court. The decision has never been modified or reversed and it is conclusive against the position taken by the defendant in error in this case.
The failure to give notice when required by the code provisions in reference to motions does not necessarily deprive the court of jurisdiction, although it may defeat jurisdiction in the particular case, if there is an appropriate and timely objection interposed. Elliott’s Appellate Procedure, sec. 503.
Rehearing denied.