People ex. rel. Warren v. Carpenter, 29 Colo. 365

People ex. rel. Warren v. Carpenter

29 Colo. 365 | Colo. | 1902

Per Curiam

(afterstating the facts). It is the position of petitioners that, under our mandate, the court below had no discretion whatever in its execution; that the mandate contemplated merely that the trial court should, by an accounting or otherwise, ascertain the amount of taxes, interest and costs which the plaintiffs in that action were required to pay in order to secure the fruits of their decree, and that when this amount was ascertained the only additional thing the lower court could do was to order the same to be paid within a reasonable time, which, if done, would of itself confer upon the plaintiffs all the rights to which they were entitled, but, if not complied with, the action must summarily be dismissed.

We do not feel called upon to decide at this time what was the limit of power, or extent, if any, of the discretion possessed by the district court in executing this mandate. It is to be observed, however, that when a mandate of a reviewing court is issued to an inferior tribunal, the latter must yield obedience to *370it, yet it is not to be a blind, but an intelligent obedience. Nowhere has the doctrine been better expressed than by Mr. Justice Field while sitting in the circuit court of the United States in the case of The South Fork Canal Co. v. Gordon, 2 Abbott’s U. S. Reps. 479. He says: “The judgments of that tribunal (that is, the appellate court) are founded upon the records before it, and those judgments will be unhesitatingly enforced, except as their enforcement may be modified or restrained by events occurring subsequent to the period covered by the records. That such events may modify, and often do modify, the mode and manner of enforcement, is well known to all members of the profession. The death of the parties, partial satisfaction; * * * are instances where this result is frequently produced.”

Indeed, in this very case the petitioners themselves recognized that the mandate was not absolutely inflexible by bringing to the attention of the court the fact that the original plaintiff in the action was dead, and asked for and obtained, an order substituting his heirs as parties plaintiff. This action they concede was proper, though not specifically authorized by, or mentioned in the mandate. If the court below in its execution, determined, on account of matters and things which occurred subsequent to its issuance, that in justice to either of the parties and without contravening any provision of the mandate, some further inquiry should be made and some further orders entered, even though the determination was erroneous, it does not render such action void, and the error, if any, may be corrected in an appropriate way.

Expressly disclaiming any intention to indicate our opinion as to the correctness or incorrectness of the determination of Judge Mullins, we are clearly of *371opinion that this application should be denied. It is true that, in certain circumstances, mandamus is an appropriate remedy to compel obedience by the tidal court to the mandates of an appellate tribunal; but because it is an appropriate remedy it does not follow that it is the only one, or that it will always be granted. In a late case in the supreme court of the United States, Ex Parte The Union Steamboat Co., 178 U. S. 317, Mr. Justice Brown, speaking for the court, after having declared that mandamus was an appropriate remedy, said: “It is equally well settled, however, that such writ, as a general rule, lies only where there is no other adequate remedy and that it cannot be availed of as a writ of error. * * * The inferior court is justified in considering and deciding any question left open by the mandate and opinion of this court, and its decision upon such matter can only be reviewed upon a new appeal to the proper court.”

This doctrine is sustained by the great weight of authority in this country, as will be seen from a collection of the cases in High’s Ex. Legal Remedies (3d ed.) § 177 et seq. § 190 et seq. Such, also, is the established rule in this state. People v. District Court, 26 Colo. 399; People ex rel. v. Butler, 24 Colo. 401; People etc. v. Judge etc., 18 Colo. 500. Many other authorities to the same point might be cited, but to do so would encumber, without strengthening the opinion.

It appears, therefore, that petitioners are asking this court by mandamus to compel the district court of Arapahoe county, as presided over by Judge Carpenter, to disregard and set at naught a previous judgment of one of his associates in the same court, and summarily enter an order of dismissal. .It is clear that they have or, unless lost by neglect, had a *372remedy by appeal or writ of error from the judgment of Judge Mullins. They did not object to Judge Mullins entertaining the application of Stuart and Murray, nor did they except to the judgment when it went against them. They are endeavoring to convert the writ of mandamus into an appeal or writ of error for the review of an alleged erroneous order of the district court entered in a matter over which it clearly had jurisdiction. Indeed, in this very case, upon the second appeal, an erroneous ruling was brought to our attention by an appeal and there rectified. Adams v. Warren et at.,27 Colo. 293; 61 Pac. Rep. 609.

If, therefore, the district court has not carried out our mandate, its action may be, or might have been, corrected by appeal or writ of error in the ordinary and regular course of the established practice, and therein its judgment could be, or might have been, modified or the proper judgment entered. That being true, the petitioners are not entitled to a writ of mandamus. The rule to show cause heretofore issued is therefore discharged and the petition dismissed.

Petition dismissed.