People ex rel. Lathrop v. Court of Appeals

33 Colo. 264 | Colo. | 1905

Per Curiam.

The relator, an attorney at law, as plaintiff, brought her action in the district court of the city and county of Denver against Moses Hallett as executor and trustee under the last will and testament of George W. Clayton, deceased, and the city of Denver as cotrustee thereunder to recover a judgment for legal services, which she claimed to have performed under a contract therefor with such executor, in a contest proceeding over the validity of the will, which judgment, when recovered, she sought to have made a lien upon the property of the estate. The district court found against her, and its judgment was affirmed upon appeal by our court of appeals.- — Lathrop v. Hallett, 20 Colo. App.-(77 Pac. 1095). To obtain a review of the latter judgment, Lathrop files here this petition for a writ of certiorari.

Some of the grounds, to which many authorities are cited, upon which she bases her right to a review, do not call for any consideration at our hands. They concern alleged error jn rulings upon matters clearly within the jurisdiction of the court of appeals, which rulings are not antagonistic to any former decisions of the supreme court. The latest pronouncement of this court as to its authority to review judgments-of the court of appeals upon certiorari is found in People ex rel. Hagerman v. Court of Appeals, 32 Colo. 147. Its previous decisions are therein cited, and the doctrine of the cases summarized by the writer of the opinion in the statement that, unless the court of appeals is without jurisdiction to render the judgment, or unless in a clear case it ignores some decision of this court, or unless cases, if any, are presented involving the same principles, certiorari will not he granted. Let us test the pending application in the light of this doctrine and see if there was jurisdiction below or a refusal to be guided by our previous decisions.

There is no doubt that the court of appeals had authority to pronounce the judgment which is here attacked. Miss Lathrop herself invoked its jurisdiction, and in that respect acted advisedly. It is claimed, however, that, in rendering that judgment, previous decisions of this court were willfully disregarded in the following particulars:

1. In an action pending in the court of appeals which was not, under the statute, one that could be, as matter of right, advanced on the hearing docket, against petitioner’s objection that tribunal made an order that the same be advanced, which was entered before the cause was'ready for submission. Thereby, it is said, were ignored the statute and a prior decision of this court on a question of jjractice, Dickinson v. Freed, 24 Colo. 483, where it was declared to be the established practice of this court where, as a matter of right or for good cause shown, a cause may be advanced, not to entertain an application therefor until the abstract and all the briefs have been filed in accordance with the rule of court, and the cause is ready for submission. The very case cited recognizes, by implication, that actions not within the letter of the statute may, for good cause shown, be advanced, though the parties are not, as of right, entitled to the order. So there is nothing to the argument that the action could not, in any event, be hastened for hearing.

It should he borne in mind that under the so-called court of appeals act (Session Laws 1891,119), by section 6 thereof, the court of appeals had power to adopt rules regulating procedure therein, provided that such procedure shall be so far similar to that of the supreme court as, in the judgment of the judges of the court of appeals, may be practicable. It is to be observed, in the first place, that while the order did contemplate the advancing of the cause before the same was ready for submission, it also provided therein that the respective briefs should be filed within a certain time, and when compliance therewith was had, the cause would be set for oral argument upon the application of either party. In a substantial sense, therefore, the cause was not advanced until after it was at issue, since oral argument, which the parties requested, was not had until after the abstracts and briefs were all filed.

But if it be conceded that the order was, under our practice, prematurely made, we are not prepared to say thát, for a failure strictly to conform thereto, such action of the court of appeals may be reviewed here upon certiorari. The established practice, not any specific rule, of this court precludes a party as a matter of right from moving to have, á cause, in a proper case, advanced until it is at issue. This, however, is far from saying that the court may not, for a reason satisfactory to itself, or of its own motion, deviate from the practice and in a proper case advance a cause on the- docket before the same is at issue. We are not to presume that prejudicial error was committed, and, for aught that appears to the contrary, the order here may have been made before the cause was at issue, because appellant there (petitioner here) asked for and obtained a long extension of time for the filing of her brief.

There is a further contention by petitioner that the advancing of the case worked an injury to her because, if the case had been taken up in its regular-order, it would not have been reached until after the court of appeals, by the late constitutional amendment, was abolished, and, under such amendment, the appeal would then have been heard and determined in the enlarged supreme court, three of whose judges constituted the court at the time she rendered valuable services in the contest over the will for which she sought a judgment. She had no statutory right to be heard in the supreme court. That the necessary effect of the order for advancing the cause prevented thé consummation of her desire to submit her case to what she deemed a more favorable court, is not a proper thing to consider upon the present hearing. To the judgment and sound legal discretion of the judges of the court of appeals is confided the determination of the question as to how nearly similar to our procedure is that which they are required, by rule, to prescribe for that court. And we hold that the alleged departure here is not of such a character, nor is the supposed injury to petitioner of such nature, as to entitle her to the extraordinary relief demanded..

2. It is said that the court of appeals also disregarded the decision in Fillmore v. Wells, 10 Colo. 228; Davidson v. Comrs., 26 Colo. 549, and Lynch v. Smyth, 25 Colo. 103. We have given attentive consideration to these eases, and find the contention not good. In the Fillmore case it was held that a judgment recovered by an attorney for his professional services may be.impressed as a lien upon the fruits of a judgment relating to real estate. That doctrine was not ignored by the court of appeals in the judgment complained of. In the Fillmore case the court found that a contract of employment had been entered into between the attorneys 'and a guardian, and the judgment recovered for such services was the foundation of the lien which it fastened upon the property of the wards. Here both the district court and the court of appeals held that no contract was made or authorized by the executor of this estate with Miss Lathrop; therefore there was no occasion for applying the doctrine pertaining to attorneys’ liens.

Wherein the Davidson case, supra, was disregarded, we are at a loss to discover. We are satisfied that nothing there said was ignored.

It is said that the court of appeals refused to follow the doctrine that a principal may, by ratification, be bound by the act of an agent (which this court, in Lynch v. Smyth, supra, announced), but, on the contrary, applied the principles laid down in the ovei’ruled decision in Smyth v. Lynch, 7 Colo. App. 383. This contention is groundless. It does not appear that the facts of this case are the same as, or similar to, those in the Lynch case. It was a question of fact in both cases as to whether the principal ratified the acts of the agent. It does not appear that the court of appeals failed, or refused, to apply to the facts of the present case the law, as heretofore declared by us, which- governs the ratification by a principal of the agent’s act.

It follows, therefore, whether the court of appeals was right or wrong in its decision, it not only had jurisdiction of the appeal, but it is not made to appear that, in any proper sense, it has ignored any previous decision of this court in pronouncing its judgment.

The rule to show cause, heretofore issued, is discharged, and this proceeding is dismissed.

Proceeding dismissed.