33 Colo. 179 | Colo. | 1905
delivered the opinion of the court.
W. A. Taylor and John Leonard owned some mining claims and a mill site in San Miguel county. They entered into a contract with W. A. Clark for the sale of the property, which, among other things, required the vendee to erect, or repair, a mill thereon. Clark’s rights and interests under this contract passed by assignment to The Allegheny Gold Mining
From that portion of the judgment denying a lien upon their interests, The Colorado Iron Works took the case, by appeal, to the court of appeals, which court, upon final hearing, held that the judgment should have been made a lien upon the interests of Taylor and Leonard, the fee owners, as well as upon the interests of the mining company. And the court, believing that there was no reason for a new trial, reversed the judgment and remanded the cause to the district court with specific instructions to modify its decree so as to extend the lien to the title and interests of Taylor and Leonard to the mill erected or repaired by The Colorado Iron Works, the machinery therein, and the mill site. — Colo. Iron Works v. Taylor, 12 Colo. App. 151.
Taylor and Leonard prosecuted an appeal from the judgment of the court of appeals to this court, but, upon motion of appellees, the appeal was dismissed upon the ground that the supreme court had not jurisdiction to entertain it. — Taylor v. Colo. Iron Works, 27 Colo. 310.
Thereafter the remittitur went down from the court of appeals to the district court, and the latter executed the mandate by modifying the original
The cause has now been reached on final hearing, and defendant in error has renewed its application to dismiss the pending writ of error upon the ground that there is no jurisdiction in the supreme court to entertain it. It will be well to state generally some of the positions assumed by the respective parties in order to bring out the nature of the controversy.
Defendant in error contends that the judgment entered in the district court after the cause was remanded by the court of appeals, being strictly in accordance with the directions of the mandate of the latter, was, and is, in legal effect, the judgment of the court of appeals, and not that of the district court, which, in this particular, was simply acting in a ministerial capacity to cany out the commands of the higher tribunal, and is, therefore, not reviewable in either appellate court; that since the supreme court, in Taylor v. Colo. Iron Works, 27 Colo. 310, dismissed, for want of jurisdiction, the appeal which’ had been taken directly from the judgment of the-court of appeals to the. supreme court, before theremittitur had been sent down to the trial court, that' holding logically results in the conclusion that jurisdiction is also lacking to entertain this writ of error to review indirectly what, in legal effect, is the same
The plaintiffs in error, on the contrary, contend that the judgment we are asked to review is that of the district court; and as its money judgment against the mining company in excess of $2,500, was made a lien upon the property of plaintiffs in error, it is, under the doctrine of Standley v. Mfg. Co., 25 Colo. 376, and Mining Co. v. Bank, 24 Colo. 537, sufficient to invoke the jurisdiction of this court, and that, in such a case, final jurisdiction is in the supreme court and not in the court of appeals. They further contend that if the judgment in question is not that of the district court, but, in legal effect, the judgment of the court of appeals, then it must be repudiated in this proceeding for the reason that the court of appeals had not jurisdiction by appeal to review the first judgment of the district court, which, in part at least, was in its favor; for under repeated decisions of this court, a party cannot appeal from a judgment in his favor, although in the trial court he is denied the full relief asked by his pleading. Plaintiffs in error further maintain that, in reality, the decree here attacked is the district court’s own decree. Prom this is deduced the proposition that,
1. We observe, in the first place, that under the court of appeals act, which, so far as the questions now before us are concerned, is the sole measure of our jurisdiction, both by appeal and by writ of error, this court had not the power, by writ of error, to review the judgment of the court of appeals, unless it had the power to do so by appeal. There is no such distinction as counsel for plaintiffs in error assert. A review of judgments of the court of appeals in the supreme court, by appeal or writ of error, is the creature of this act, and where the right thereto by the one method is lacking, there is no right to proceed by the other. When this court dismissed the appeal from the court of appeals because the same was not within its cognizance, and did not order the cause redocketed on error, this was equivalent to a declaration that jurisdiction by writ of error was also lacking. Besides, it is too late for plaintiffs in error to be heard to say that the supreme court ought to have redocketed the cause on error, even if that should have been done, for they did not seasonably ask for such order.
2. That the court of appeals was authorized, under section 398 of the code, in the appeal that was pending before it to render final judgment and cause the same to be entered in its own records, or to direct
This judgment we have already held in the case cited from 29 Colo., supra, could not be reviewed by us on appeal, and, as a necessary consequence of that ruling, as we have also heretofore said, could not be passed upon by us upon a writ of error prosecuted directly thereto. It is hard' to see, therefore, why, after the judgment of the court of appeals had been carried into effect by the district court, it could be reviewed by us indirectly. But plaintiffs in error say that we should now disregard the judgment of the court of appeals because the same is absolutely void for want of jurisdiction,-and if we do that, it leaves before us what is purely a judgment of the district court, rendered upon its own independent view of the law and facts. It is familiar learning that a judgment rendered where the court has not jurisdiction of the subject-matter, is void, and it is beyond the power of the parties, by consent or agreement, to confer such jurisdiction. And the like rule prevails in case of a judgment pronounced by a court upon an appeal where there was no jurisdiction to entertain it, for, as an appeal with us is not a matter of right, but depends upon the statute, if it has not been thereby given, it cannot be conferred by consent of parties. — Harvey v. Travelers’ Ins. Co., 18 Colo. 354; Derry v. Ross et al., 5 Colo. 295; Smith v. Smith,
It has also been ruled by this court, in a number of cases, that a party in whose favor a judgment is wholly or partially' entered cannot appeal, and that joinder in error does not remove the objection, and that consent cannot confer jurisdiction. — Fischer v. Hanna, 21 Colo. 9; Hall v. Pay Rock C. M. Co., 6 Colo. 81; Booth v. Water Co., 9 Colo. App. 495.
Other cases to the same effect might be cited. Whether the rule last mentioned applies to a case like the one before us, where the favorable .part of the judgment for plaintiff is against one of the parties defendant to a suit brought to enforce a mechanic’s lien, and the unfavorable portion affects a different party defendant, we do not decide. For the purpose of this opinion we shall assume that the rule invoked is applicable here, and we shall also assume that, in an appropriate proceeding, the judgment now complained of would invoke the jurisdiction of this court. It will be observed that all these decisions upon which plaintiffs in error rely, were decided before the passage of the act (section 388a, Mills’ Code) authorizing an appellate tribunal to redocket a. cause as pending on writ of error, when it has dismissed an appeal for lack of jurisdiction, provided the court would have jurisdiction if the action had come up on writ of error. It has been held that where an appeal is an absolute nullity, if the appellee appears and argues the case on its merits, he. cannot afterwards be heard to urge such invalidity if the court had jurisdiction of the subject-matter. — Glazier v. Carpenter, 16 Gray 385; People v. Gale, 16 How. Pr. 199; Jones v. Munger, etc., Co., 50 Fed. 785.
But the objection- here is that the subject-matter was without the court’s jurisdiction. As pertinent
The statute then implies in that contingency and says that the appeal shall be dismissed if the case is not appealable, but the cause shall not be dismissed, but redocketed on error, and further proceedings shall be had as though the same had been brought up on error in the first instance. The court of appeals, therefore, having jurisdiction of the subject-matter in an appropriate proceeding, when the appellees (who are the present plaintiffs in error) appeared therein and argued the case upon the merits, it is too late for them thereafter to object that jurisdiction by appeal did not lie. If that objection had been made even so late as upon a petition for rehearing, that tribunal, if it had decided that the objection was good, would have ordered the cause redoeketed on error. The fact that such order was not entered, and the further fact that the judgment was rendered on appeal, do not make it voidand appellees forfeited the right to object to the result of a proceeding which
3. The plaintiffs in error strongly insist that since by the first judgment of the district court, they were dismissed with their costs, they had no right to contest the question as to the amount of the indebtedness which subsequently was made a lien upon their interest in the property — and no reason to seek to reduce the demand of the judgment creditors — and, therefore, a grievous wrong is done them if they are not now permitted to be heard. This argument has some force, it is true, but it must be remembered that plaintiffs in error were appellees in the appeal before the 'court of appeals, and filed their briefs; they did not avail themselves of the right which they had to assign cross-errors, and have, up to the present time, made no complaint that the amount of the judgment was excessive. They had an opportunity to be heard before the court of appeals-as to all of the questions by which they were in any wise affected, and might have requested that tribunal to remand the cause for a new trial so as to preserve to them the right of review in the supreme court in case of an unfavorable decision, but the only point they made at that time was that their property was not affected by the lien of the judgment rendered against the contractor, and their right now to inquire into that we have denied. ■
■ 4. If the court of appeals ’ judgment is void for the reason urged, it does not necessarily follow that plaintiffs in error are now in a position to avail themselves of that objection. Under the established practice in this court, errors must be properly assigned, and we find no assignment of error that the court of appeals was without jurisdiction to render the judgment complained of.
For a better reason, however, we cannot look into that. No order of the trial court on the proceedings leading up to the final decree in obedience to the mandate of the court of appeals, was made for incorporating into a bill what transpired upon the original trial in the district court. It will not do to say that the correctness of the action of the trial court in entering the judgment of the court of appeals is to-be determined from an inspection of the bill of exceptions containing what occurred at the original trial, particularly as there is nothing to show that its action was based thereon. Indeed, the record abundantly shows that the trial court exercised no judicial discretion whatever, but acted only as the representative of the court of appeals in entering up the latter’s judgment. It is too clear for argument that, even if we had power to entertain this writ, we could not, in the state of the record before- us, look into the bill of exceptions used in the court of appeals.
Our conclusion is that we do not have jurisdic
The motion is therefore sustained and the writ of error must be dismissed.
Writ of error dismissed.
Gabbert, C. J., not participating.