Platte Land Co. v. Hubbard

30 Colo. 40 | Colo. | 1902

Chief Justice Campbell

delivered the opinion of the court.

The learned counsel for plaintiff in error attacks the constitutionality of the act of our general assembly by which the court of appeals was created. He asserts its invalidity as a whole, and, if that is ruled against him, he contends that if the statute is not void in its entirety, it is so, in so far as it purports to make the appellate jurisdiction of the court of appeals final and conclusive in any case. In People v. Richmond, et al, 16 Colo., 274, in an original proceeding in the nature of quo warranto, in which the court of appeals itself was the respondent, this court, in an able opinion by Chief Justice Helm, held, as generally understood by the profession, that the act there, and now here again, attacked, was constitutional; although, in a previous opinion in response to a legislative question, it held similar legislation, as it is now said, obnoxious to the organic act. In re Court of Appeals, 15 Colo., 578.

In an elaborate argument exhibiting great research, counsel for plaintff in error again seeks to have the question, commonly supposed to be concluded, reopened, contending, among other things, that a question of such vast importance should not be deemed settled until determined right, and that the objections which he now makes to the act were not directly ruled upon by this court in the Richmond case. If it were necessary to pass upon the questions here argued with such distinguished ability, they would demand the most earnest and serious consideration at the hands of the court.' But in the view we take of the matter, the plaintiff in error is not in a position to have determined the main question which his counsel discusses.

Mr. Justice Steele is disqualified to participate in this decision by reason of the fact that he was counsel for one of the parties touching certain matters out of which the present litigation arose, and in the absence of a full bench, and in a case where the court of appeals itself is not a party, we would be disinclined to pass upon the constitutionality of the act which is the source and origin of its jurisdiction, and would not do so, unless absolutely necessary to a determination of the case in hand. Defendant in error contends that this is a collateral attack, and for that reason alone should be ignored. Be that as it may, it is clear that the necessities of the present case do not require a decision upon it.

These motions must be determined against the plaintiff in error upon other grounds. The land company prosecuted in the court of appeals its appeal from the judgment of the district court. It was not forced there as an unwilling party by any act of appellee, though that may not be material. It submitted itself, however, to the jurisdiction of the court of appeals, and the judgment of the latter affirming the ruling of the district court has not been directly attacked. No attempt by the company has been made to have the judgment of affirmance directly reviewed on appeal, or writ of error, or otherwise, by the supreme court. We must not Be understood as intimating that had such attempt been made it would have been successful, or that the jurisdiction of this court could thus be invoked. But we do say that plaintiff in error may not disregard the judgment pronounced by the court of appeals, which was induced by its own act, and sue out a writ of error in this court to the judgment of the district court, and thus indirectly have considered, and possibly overturned, the judgment of the court of appeals. It can not be permitted thus to disaffirm its own voluntary act, and if it is entitled to any relief from the judgment of the court of appeals, it can not get it in the manner here attempted.

Counsel for plaintiff in error says, however, that the objections just mentioned can be raised by defendant in error only by a plea in the nature of a plea in abatement, which was not interposed. Technically that may be true; and it may be, as counsel contends, that a plea in abatement is necessary to bring into the record what is not already there as a basis for a motion to quash the writ. However that may be the facts upon which the objection of defendant in error is predicated, and upon which we base our decision, sufficiently appear in the record already before us.

For the reasons given the motion of plaintiff in error for a rule upon the clerk of the court of appeals is denied, and the motion of defendant in error to quash the writ of error is sustained.

Writ of error dismissed.

Mr. Justice Steele not participating.