Porter v. Grady

21 Colo. 74 | Colo. | 1895

Mr. Justice Goddard

delivered the opinion of the court.

The evidence introduced upon the trial was not preserved by a bill of exceptions, and our review is therefore limited to the record proper. The foregoing statement sufficiently presents the rulings upon which error is assigned. These may be summarized under three heads: First, that the court erred in denying motion for judgment upon the pleadings; second, in dismissing the counterclaim; third, in summoning, a jury of twelve on its own motion, to try the issue of fact. In support of the first proposition, it is contended by plaintiff in error that the specific denials in the replication to his cross complaint limited the general denial, and being in themselves insufficient to put in issue the question of notice, that notice was thereby admitted. This claim we think is without merit. The specific denials in no sense admit any fact alleged in the complaint, and, while unnecessary, they were not inconsistent with the general denial, nor did they in any manner limit its force or effect. The question of notice was put in issue by the pleadings, and the motion for judgment thereon was properly denied. The testimony introduced upon the trial not having been preserved by a bill of exceptions, we must assume that the evidence was sufficient to sustain the finding of the court below that Grady’s mortgage was a prior lien to that of Porter. The second objection is well taken. It is clear that the court erred in dismissing the cross complaint. The plaintiff in error was entitled thereon to relief against his codefendant Newell, and to have his mortgage adjudged a second lien upon the real estate in question, and to have the surplus, if any, derived from its sale after satisfying the prior lien of defendant in error, applied towards the satisfaction of his claim.

It is unnecessary to discuss the third question presented, since the right of the court to call a jury to answer questions of fact in chancery eases is too well settled to admit of controversy ; and we know of no rule that limits the court in calling a full jury for that purpose. And, furthermore, the verdict of the jury in such case being merely advisory, the court may disregard it and decide the issue of fact for itself on the evidence produced. The judgment must be reversed and the cause remanded with directions to the court below to reinstate the cross complaint of plaintiff in error and to grant him the relief he is entitled to thereon as against his codefendant Newell, and decree to him the surplus, if any, derived from the sale of the mortgaged premises, after satisfying therefrom the prior lien of defendant in error. The plaintiff in error having failed to make Newell a party fo the proceeding, and the defendant in error being entitled to the decree in his favor, the cost in this court must be assessed against plaintiff in erroi\

Reversed.