241 P. 720 | Colo. | 1925
THIS hearing is on the return to a citation to the district court of the City and County of Denver and respondent Saunders, to show cause why they should not be adjudged guilty of contempt for their failure to obey a mandate of this court made on a former review.
When the case was first here (Rude v. Wagman,
After issuing the mandate to the lower court, the district court, entered an order requiring Saunders, as attorney for the receiver, to pay into the registry of the court, for the use of Rude, $1,350. The order being ignored by Saunders, the district court issued its citation to him to show cause why he should not be dealt with as for contempt. Upon the hearing of the return in the district court, it appeared from the testimony of Saunders that he owned real and personal property, including money *319 in bank, valuable shares of corporate stock and bills receivable in excess of $1,350. In the face of these admissions under oath by Saunders, the district court made its finding in favor of the respondent and entered judgment discharging him. This judgment of the district court is now before us for review, upon a citation to show cause.
The pretended findings of fact and order of the district court was a clear, plain, palpable disregard of the mandate of this court. The admission of the respondent, under oath, that he had money, owned real estate and valuable shares of stock and bills receivable in an amount several times the sum of $1,350, is conclusive evidence of the ability of respondent Saunders to pay into the registry of the court the moneys belonging to Rude. The admission of Saunders, under oath, in open court, that he was possessed of money and property was the highest kind of evidence. The truth of the fact was out of his own mouth. The fact was plain; the proof was clear; the court could not blind itself to such conclusive evidence. The trial court was without discretion in the matter. It could neither evade nor disregard the proof. Its only duty under the mandate of this court was to declare judgment according to the facts admitted by the respondent, under oath, in open court.
We trust it will not be necessary for this court to resort to extreme measures to effect a compliance with the mandate of this court. However, the mandate must be complied with by the district court, without any evasion whatever.
The judgment of the district court discharging the respondent is reversed and remanded, with directions to the district court to commit respondent Saunders until he complies with the order of that court, by paying into the registry of the district court $1,350.
MR. CHIEF JUSTICE ALLEN and MR. JUSTICE DENISON concur. *320