Hickey v. Anheuser-Busch Brewing Ass'n

36 Colo. 386 | Colo. | 1906

Mr. Justice Goddard

delivered the opinion of the court:

1. Counsel for appellant insist that the judgment of the county court disallowing- the claim was res adjudícala, and barred the right to recover on the note in this action. The finding of the court, as set forth in the answer, is: “That the court doth further find as a matter of fact that more than six years have intervened between the date the cause of action * .* * arose and the time set for the hearing of said claim, ’ ’ and for this reason disallowed the claim. In order to constitute an estoppel by judgment, the same identical matter must have been in issue in the former suit, and the precise fact determined by the former judgment. — Allen v. Tritch, 5 Colo. 222; De Sollar v. Hanscome, 158 U. S. 216.

The finding that the note in question was not provable against the estate of de Carli because barred by the statute of limitations at the time of the hearing-in the county court, is in no sense a finding- that it was barred on the 3d day of April, 1900, the date this action was commenced. The judgment of the county court, therefore, constituted no bar to the enforcement of the note in this action, nor in any way precluded the district court from exercising its previously acquired jurisdiction in the foreclosure proceedings.

2. It is unnecessary to- consider the objection that the reply * ‘ does not deny the new matter set up in the answer,” since no reply was necessary for the reason that the new matter, as we have seen, did not constitute a defense to the cause of action set forth in the complaint.

3. A further error relied on is that the court rendered judgment upon the oral motion of counsel for appellee without written notice of such motion. In support of this objection counsel rely upon section 272 of the civil code, which requires written notice of all motions ‘ ‘ except those made during the progress of a trial. ’ ’ The record discloses that counsel for appellant filed a written motion for judgment on the pleadings, which, after argument by respective counsel, was overruled. Upon the overruling of this motion, counsel for appellee asked for judgment. This was done in the presence of counsel for the appellant-, and upon the close of the argument on the former motion. • The counsel for appellant being present in court and asking for judgment in his favor upon the pleadings, and making no objection to the hearing of a similar motion by opposing counsel upon the ground that ho written notice had been served, we think should be held to have waived the service of such notice, and he will not now be permitted to avail himself of an error (if it be such) that could have been avoided by calling the matter to the timely attention of the trial court.

For the foregoing reasons the judgment is afflrmed'

Affirmed.

Chief Justice Gabbert and Mr. Justice Bailey concur.