25 Colo. App. 340 | Colo. Ct. App. | 1914
Lead Opinion
rendered the opinion of the court.
•Action to quiet title, begun February 10, 1906, by .appellant as plaintiff. The record shows that the fee simple title was in plaintiff unless extinguished by the tax deed upon which defendant’s title is founded. A decree was entered in favor of defendant, the validity of which is involved in this appeal.
Only three propositions are discussed and relied upon by appellant in his brief: First, as to the action of the court in rendering judgment in chambers, in a county other than that in which the case was tried; second, as to the court’s power to vacate a judgment previously rendered at the same term, after an appeal therefrom has been perfected; third, as to error claimed to have been committed by the court in denying plaintiff’s motion to strike from defendant’s answer a paragraph which pleads in effect the five years statute of limitations, sec. 3904, Mills’ Annotated Statutes.
As to the first question, the record discloses that
Plaintiff now contends that under' authority of Scott v. Stutheit, 21 Colo. App., 28, 121 Pac., 151, the entry of December 7th is null and void; that, plaintiff having perfected his appeal therefrom, the district court was thereby deprived of jurisdiction to further act in the case; and that the vacating order, and judgment of January 5th, are null and void. The case cited supports appellant’s contention on the poifit that the judgment of December 7th is null and void, and were that the only judgment before us we would necessarily have to reverse it. Such
Without passing upon the question as to the general power of a court to amend, vacate or otherwise change a valid order or judgment previously entered by it" at the same term in which such power is exercised, from which order or judgment an appeal had been perfected, we think in this case the court did’ not err in entering the judgment of January 5th, as both parties concede in their briefs that the record entry of December 7th is null and void. It is also a fair presumption that the court must necessarily have been of the same mind, or it would not have attempted to disturb it. The entry was lifeless and harmless. It settled no issue, did not establish in defendant any title to the premises, nor did it affect plaintiff’s rights in any manner. It could not support any subsequent action of defendant based thereon. Had no appeal been attempted therefrom it still remained of no force or effect for any purpose. Plaintiff had a perfect right to ignore it and treat it as if it had never been made.. We think the trial court was also warranted in so considering it and vacating it, so far as it had the semblance of a judgment, and was also warranted, at any time during the term, in rendering a valid judgment or decree founded upon the merits . as disclosed at the trial. Under these circumstances we deem this question pressed by appellant as highly technical. He has had a full hearing upon the merits of the case, both in the trial court and on this appeal. It must be remembered that both the entry of December 7th and the judgment of January 5th were based upon the merits, the findings in both eases being in favor of defendant; that they were based upon the same trial, and were in all respects identical, with the exception that no formal judgment was entered on the findings and order of December 7th.
As above stated, the trial court fell into error in ruling the statute of limitations to he an available defense to the action, hut we are satisfied that it was error without prejudice. The record conclusively shows that at the
It may be observed that no question of amendment of pleadings is raised on this appeal, as was done in the Wannemaker case. In the latter, defendant asked leave at the trial to amend his pleadings, which was refused. In the instant case appellant did not ask to amend his replication, nor has he on this appeal suggested in any way that he was deprived of an oppor-
Appellant further contends that the pleadings formed an issue in the cause as to whether or not there had been such an advertisement of the tax sale, and publication of the list and notice thereof, as the law required, but we do' not so find. In the absence of such issue, defendant’s tax deed received in evidence at the trial, being good on its face, was prima facie proof that the property in question was advertised for sale in the manner and for the length of time required by law.— Sec. 5730, Revised Statutes 1908.
We have noticed all the points mentioned and discussed by appellant in his briefs and discover no reason why the judgment should not be affirmed.
Judgment Affirmed.
Concurrence Opinion
specially concurring:
I concur in the result of the majority opinion because no injustice is done thereby, as the original plaintiff permitted his land to be sold for taxes in 1894 and for twelve years thereafter took no action to recover it and even then sold the title with the suit to the substituted plaintiff,’ and furthermore, the only defect in the tax deed was a defective publisher’s affidavit which might have been amended. Section 78, Mills’ Ann. Code, provides that no judgment shall be reversed or affected because of a defect or error in the pleadings not affecting the substantial rights of the parties.
I think the foregoing reasons should be given for the affirmance instead of those upon which the majority opinion is based. That opinion establishes a precedent that may be used, sometime, to take a man’s land away