244 P. 466 | Colo. | 1926
THE action is one to quiet title to real estate. At the first trial the findings were in favor of the plaintiff and a decree passed adjudging title to be in her. Upon a review of that decree in this court, Sullivan v. Scott,
In May, 1924, the plaintiff, who was joined by Hultquist and Jones, filed a verified motion in the case to vacate the decree and therein they say that they, and each of them, separately move the court to vacate the same and set it aside. This motion was not traversed by affidavit or formal pleading, but the court, in the exercise of its inherent discretionary power, permitted the defendant to offer evidence upon the hearing, which, together with proceedings in connection with the vacation motion, are embodied in defendant's bill of exceptions relating to the hearing on the motion to vacate, which bill contains some of the proceedings that took place at the trial, which we have examined on the assumption that we may properly do so, without stopping to inquire if the contents of the bill are properly before us. There is no claim here that the evidence produced *177 by defendant was not sufficient to sustain the findings of the court upon which the decree now being reviewed was rendered. This judgment must be affirmed, irrespective of the showing made by the defendant. The verified motion to vacate, even if not contradicted, and if the defendant's evidence is ignored, is insufficient to justify a reopening of the case, as we now proceed to show.
1. Although in an ordinary equitable or legal action a plaintiff, under section 184 of our Code, C. L. 1921, p. 139, may, before trial, dismiss his action if a counterclaim has not been made, he may not in an equitable action to try title to real estate, by a voluntary dismissal of the action, prevent or preclude the court from granting affirmative relief to the defendant and adjudging title to the lands to be in him if he has set forth in his answer, though not in the form of a counterclaim, the title which he claims. In this case the answer contained no formal counterclaim but therein the defendant set forth that he was the owner in fee of the premises. InEmpire R. C. Co. v. Herrick,
We hold, therefore, that the plaintiff's voluntary dismissal of her action did not preclude the court from adjudging title to be in the defendant since he inserted in his answer a claim of ownership in fee.
2. The plaintiff is wrong in her contention that she was justified in relying upon her alleged understanding that the trial would not be had upon the opening day of the term. A rule of court provides, and such is the practice, that all cases at issue on the merits at the commencement of the term (and this case was then so at issue) shall stand for trial on the first day of the regular term. True, on the first day the practice is to set cases for trial, first criminal cases, and then civil cases that are at issue, but all parties are bound to know that all cases stand for trial on the first day of the term and may then be tried if the court sees fit and has the time therefor. When this case was reached the attention of the court was directed to the fact that the plaintiff had entered a voluntary dismissal and upon the defendant's *179 request the court heard his proofs, made findings of fact and entered a decree in defendant's favor adjudicating the title to be in him. The plaintiff was represented by counsel. There is nothing to show that her counsel offered any evidence in her behalf or that they objected to the hearing asked for by the defendant.
The foregoing discussion applies particularly to the plaintiff Scott who instituted this action. The motion to vacate upon its face states that Walter Hultquist and Anna F. Jones join with the plaintiff therein. The defendant in making his proofs resisting the motion to vacate, called as a witness Walter Hultquist in his behalf, whereupon counsel for the plaintiff suggested to the court, to shorten the matter, that they did not believe Hultquist was a material party to the motion and would like to withdraw his name as a party, and further stated that they had authority from Mrs. Jones to appear as her attorneys in the case. The court permitted the withdrawal, defendant's counsel offering no objection thereto. Defendant's counsel, however, proceeded to interrogate the witness Hultquist who testified, over the objection of plaintiff's attorneys, that the plaintiff's husband requested him, Hultquist, to accept a deed from the plaintiff Mrs. Scott for the property in controversy and he desired the witness to attend to a matter regarding this property while the husband was absent from the state. The witness further testified that he paid no consideration whatever for the transfer to him of the property, although the consideration in the deed was $5,000; that afterwards at Scott's request the witness executed four notes to a man named Titus for $4,000 and gave a trust deed on the property to secure the same; that he did not know Titus and never had seen him; that he received no consideration for the notes and afterwards at the request of the plaintiff's husband conveyed the property to Anna F. Jones; that he received no consideration from Jones but did receive from the plaintiff $25.00 for his trouble and *180 services in the matter. It thus appears that Hultquist was not a proper party to this motion, but if he was, that he ceased to be a party when his name was withdrawn as stated. Hultquist does not, and is in no position to, complain of this judgment. Neither is Mrs. Jones. She was not a party to the action when it was instituted; she has never asked to be made a party. She attempts to join in the motion to vacate. Only one who is a party to an action may complain of any ruling of the trial court made therein. If Mrs. Jones wished the right or privilege to file a motion to vacate this decree she should have first asked the court that she be made a party plaintiff. She did not do so. Even if the attorneys who filed the motion to vacate were authorized by her to appear for her in the case, this did not give her the right to join in the motion. Neither Hultquist nor Jones has any standing in this court. Furthermore, although the trial court entertained this motion to vacate, which was filed May 8, 1924, our attention has not been called to any order in the record fixing any time within which such a motion might be filed.
We hold the verified motion to vacate insufficient not only because of its erroneous assumption that the plaintiff had the absolute right to dismiss the action and thus withdraw from the court jurisdiction to grant affirmative relief to the defendant, but also because her mistake was inexcusable in supposing the case would not be called for trial on the first day of the term. She had no reason for such assumption. She does not assert by whom she was advised that the case could not and would not be heard upon that day. If any such advice was given her it was not good.
3. Plaintiff's contention that it was the duty of the court, of its own motion, if the defendant was entitled to a hearing, to award to her the amount of taxes which she had paid upon this land while she claimed to be its owner, is without merit. This court has held inMcCracken v. Cones,
No legal ground is set forth in the motion to vacate for disturbing this decree. It is therefore affirmed.