58 Colo. 212 | Colo. | 1914
delivered the opinion of the court:
As no bill of exceptions has been preserved, our consideration of alleged errors must be limited to matters covered by the record proper. This action was instituted in the District Court of the City and County of Denver to recover a part of the purchase price, etc., for an automobile sold and delivered by the plaintiff to the defendant, also for services and expenses alleged to have been rendered and incurred in connection therewith. Judgment was in favor of the plaintiff.
It is claimed that the court erred in overruling the defendant’s motion to change the place of trial to Sum-
The alleged motion for judgment on the pleadings,
It appears that the plaintiff was allowed to file an amended replication during the progress of the trial, which it is claimed, was to the prejudice of the defendant. Without the evidence before us, we cannot say that the court abused its discretion in this respect. Amendments and the time when they can be filed are largely within the discretion of the trial court.—Jordan v. Greig, 33 Colo. 360, 80 Pac. 1045; Davis v. Johnson, 4 Colo. App. 545, 36 Pac. 887; Cascade Ice Co. v. Water Co., 23 Colo. 292, 47 Pac. 268; Harrison v. Carlson, 45 Colo. 55, 101 Pac. 76.
Trial was to the court. It is claimed that the judge expressed and exhibited bias and prejudice against the defendant and his counsel, which disclose that he could not give him a fair trial, and for this reason the motion for a new trial should have been granted. The only record presented is alleged statements of the judge set forth
“Q. What instructions did Mr. Yreeland give Pavelka? A. I don’t know; I says to him, you stay here and make this run, or see if you can. Don’t go away until you see that. They are willing to say that the colored boy is competent, and he told me the colored boy was competent, and he slipped away without letting me know he was going. And he attempted to do certain things, I can say that, and he did, but it didn’t run right while he was there. They tried to run it, but they couldn’t get it to go, unless it was down hill fifty feet. When he came back here, he, Mr. Yreeland, wrote me and said everything was all right.
Mr. Grant: I object to that as hearsay.
The Witness: I have got it in it.
The Court: That will all be stricken out.
Mr. Franklin: To what point?
The Court: The Court asked you to control your witness.
Mr. Franklin: I am trying to control him.
The Court: No you are not. You and your client cannot run this court.
Mr. Franklin: I thought that was competent evidence. If you mean to strike out the part concerning the conversation with Vreeland, why, I want to save an exception. But I don’t understand just where it begins.
The Court: Do you think witness can answer counsel, both of you talking to him at the same time? Have him proceed.
Mr. Franklin: Colonel, you are not to speak to counsel.
*217 The Witness: I beg pardon, he spoke to me first, so I spoke back.
The Court: Proceed.”
The plaintiff contends that this is not a part of the record proper and has moved to strike it. We think it unnecessary to consider this question. When passing upon the motion for a new trial the judge, in a way, had before him the entire evidence and the remarks of court and counsel, he had heard it all. The small part set forth in this motion discloses that there was other testimony and evidently other remarks which preceded, as well as followed, this,, as there is in all cases. It is not claimed such was not the case here. Without anything further before us we are unable to say this discloses that the judge was prejudiced against the defendant, or his counsel, or at all, or to the extent that he could not.give the defendant a fair trial.
For aught that we know there may have been no material conflict in the evidence upon the main issue, or it may have been overwhelmingly in favor of the plaintiff; were it here, we might be able to say that the findings could not have been other than they were. This expression of the court that counsel and his client cannot run this court, is of itself not ail expression of prejudice against the defendant; The affidavit discloses that the witness was rather astute in his remarks to counsel, and was of the opinion that whether right or wrong he had succeeded in getting something in the record which he wanted there. When these matters are considered as a whole, as above stated, we do not think that' a reversal should be granted for this reason, upon the record as presented.
It is claimed the pleadings disclose that the judgment was excessive. The original complaint alleges the sale of an automobile for an agreed price of $3,598.40;
We cannot agree that the amended replication substitutes a new cause of action, it covers new matters referred to in the defendant’s answer and cross complaint. The plaintiff’s cause of action was set forth in his amended complaint. It was for the balance due upon an automobile, etc., sold and delivered and for services rendered, etc. These were never changed and the findings and judgment were for these items.
The contentions that no damages were allowed for an admitted defect in the new car covered by an admitted guaranty in the pleadings, and that there was a departure in the pleadings concerning these matters, are in some respects similar to those pertaining to the secondhand ear. The original replication alleges that the new car was perfect in all its parts, etc., except a slight defect in one of the rear cylinders, which plaintiff promptly agreed to replace and did replace in accordance with the terms of his agreement. The amended replication does not include such an admission but admits that plaintiff promised that said automobile was of good quality and worth the valué placed upon it by plaintiff and perfect in all its parts, and would do good work. Without the evidence before us we cannot say that this admission of a defect, coupled with an allegation of immediate replacement in the original replication, although omitted from the amended replication, is sufficient of itself to call for an allowance of damages and in no event does it create any departure from the original cause of action.
The judgment is affirmed.
Affirmed.
Chief Justice Musser and Mr. Justice Scott concur.