18 Colo. 500 | Colo. | 1893
delivered the opinion of the court.
Relators were plaintiffs in error in the action for specific performance reviewed in Coffey et al. v. Emigh et al., 15 Colo. 184. They now ask for a writ of mandamus from this court to compel the district court of Boulder county to enter a decree, requiring the specific performance of the written agreement considered in that cause in conformity to the decision and opinion rendered therein by this court.
The Goffey-Rmigh Case, 15 Colo. 193, was not remanded with directions to enter a particular judgment; it was remanded for further proceedings in accordance with the opinion of this court as expressed in the judgment of reversal. Neither the opinion nor the judgment contained anjr other or further specific mandate. According to such opinion, petitioners were entitled, upon the remanding of that cause, to have a decree entered requiring the specific performance of the written agreement upon which the action was founded, unless some new matter affecting the substantial rights of the parties, and not inconsistent with the opinion thus rendered, should be properly brought before the court for consideration before the final determination of the controversy. Such decree would doubtless have been rendered, if petitioners had demanded the same in reasonable time, without doing or allowing anything to be done which could be considered as impairing or clouding their rights in the premises as-declared by the former opinion of this court.
But it appears that more than two years were suffered to elapse before petitioners made any specific demand for the rendition of such decree. It is now claimed by the answer in this proceeding that in the meantime petitioners so dealt with the propertj- in controversy that one Lewis C. Rockwell acquired an interest in such property adverse to petitioners; and also that, before petitioners made any specific demand for the rendition of the decree, said Rockwell appeared in said district court, and- upon due notice to petitioners, presented his petition of intervention, setting forth his claim to the property; and that for such reason the district court now
The writ of mandamus may, in a proper case, take the place of the ancient writ of proeedendo ad judicium, by which a subordinate court was requhed to proceed to judgment. But it does not appear that such writ is necessary in this instance, since it is not alleged that the district court refuses or is unwilling to proceed with the determination of the petition of intervention. People v. District Court, 14 Colo. 398; People v. Graham, 16 Colo. 347.
Writ denied.