49 Colo. 134 | Colo. | 1910
delivered the’ opinion of the court:
The plaintiffs in this action are The Fanny Rawlings Mining Company and Thomas D. Kyle, the former the owner and lessor, the latter the lessee of the Fanny Rawlings mining claim. August Zobel and others own the St. Louis mining claim adjoining the Fanny Rawlings. One Ostrom, lessee of the St. Louis lode, and Zobel, so the complaint says, with force and arms wrongfully and unlawfully broke and entered into the Fanny Rawlings claim beneath the surface thereof, and took therefrom ores of the value of $25,000.00, and converted‘the same to their own use. The ores so taken were sold to The Ohio and Colorado Smelting Company, with which company Zobel and Ostrom are defendants in this action. When the action was begun the Smelting Company still held in its possession the proceeds of the sale of a large quantity of the Fanny Rawlings ores. Ostrom was insolvent and unable to respond in dam
After demurrers of the respective defendants on special and general grounds were overruled, issues of fact were joined under separate pleadings of defendants, and upon these issues special findings of fact by the jury, and additional findings on the equitable issues, by the court, were made, on which, as a basis, a money judgment was rendered against defendants Ostrom and Zobel, aggregating over $12,000, and, inter alia, it was decreed that the sum of about $3,000 which Zobel still held in his possession, and under his control, was held as a trustee for .plaintiffs, and this amount he was ordered and directed to pay into the registry of the court within ten days from the date of the decree, for their use, and when it was so -paid into, the registry of the
Being a several writ, only such questions .as affect the plaintiff in error can be considered upon this review. Zobel’s separate demurrer to the complaint was based upon the ground that there was a misjoinder both of parties plaintiff and. defendant. A sufficient answer to this contention is that after the court overruled the demurrer Zobel answered, and thereby waived his right further to object to the alleged misjoinders. It is clear, however, that there was not a misjoinder of parties plaintiff or defendant. In a luminous opinion by Hayt, Chief Justice, in Coal Company v. Coal Company, 24 Colo. 116, the precise questions raised here are there determined, and it was held in that action — which was a joint one by the owner and the lessee of a coal mine against two or more joint trespassers who were wrongfully removing and-extracting coal from the mine in which the plaintiffs were thus interested —there was a proper, joinder .of parties plaintiff as well as parties defendant. That is exactly this case, and the ruling of the court below on the demurrer was right. The case cited is so explicit and full upon these questions that further discussion now is superfluous.
Plaintiff in error complains of the insufficiency of the evidence to justify the decree. We have examined the evidence with care, and it is enough to say that it abundantly sustains every finding by the court and jury upon every material fact in issue. Not only were the trespasses knowingly and willfully committed, but defendants, including plaintiff in error, obliterated evidence to prevent discovery thereof, by caving in the stopes.
It is further said that plaintiff in error was not liable as a joint trespasser with his co-defendant
Zobel filed an affidavit for a continuance, basing it upon the fact that it was material and necessary for him to have the testimony of an absent witness,
Complaint is also made of that part of the decree which adjudged that defendant Zobel held certain moneys still in his possession as a trustee for the benefit of the plaintiffs; because, as it is said, this action is based upon a trespass, and it would be incongruous and anomalous for a decree in such action to establish or enforce a trust. It was brought out upon the-trial by this defendant’s own counsel, in examining him as a witness (although he had testified to the contrary earlier in the progress of the cause), that he still held in his possession about three thousand dollars in money from the proceeds of the ore from the Fanny Bawlings mine, which had been sold to the Smelting Company and thereafter paid to him. He testified that he made no claim thereto as his own, but that he held it for the use and benefit either of his co-
Plaintiff in error says that in one count or statement of the complaint are set forth two separate and distinct series of trespasses, each one of which constitutes a separate and distinct cause of action, and that, contrary to'the provisions of the code, they are commingled in one .statement. If that be true, the remedy under our code was a motion compelling plaintiffs to separate the different causes of action and put each in a separate state
At great length plaintiff in error argues that this is an action at law and not a suit in equity, one object being thereby to disclose error by the trial court in not submitting the questions of fact to the jury for a general verdict. It would serve no useful purpose to follow counsel in this argument. In so far as the cause of action concerns this plaintiff in error, the issues as to the trespass and the value of ores are legal and the recovery sought is a money judgment. But there are also equitable issues in the action as stated by the complaint. The relief asked against the Smelting Company is equitable, and- equitable relief was also sought against Zobel and Ostrom to the extent that they, or either of them, still had in possession any of the proceeds of the ores which belonged in equity to plaintiffs. The accounting, evidence responsive to which forms a considerable part of the record in this ease, was equitable. The court, having obtained jurisdiction of a cause, administers both equitable and legal relief in order to effect complete determination of the controversy and to settle the respective rights and liabilities of all the parties.
But if the action was solely a legal action and there were no equitable issues present — and for our present purpose we might safely admit that all of the issues are legal — the record clearly and specifically recites that, after all the evidence was in and the parties had rested, the court remarked that he thought the case was one which should be submitted to the jury for special findings; and thereupon the parties, by their counsel, assented to the same in open court. The record further recites that the parties, by their respective counsel, then and there
After a careful consideration of the record we perceive no prejudicial error therein. The ease was fairly tried and well presented. The evidence is explicit and full and abundantly sufficient to sustain every one.of the findings in favor of plaintiffs made by the court and the jury. The judgment and decree is therefore affirmed. Affirmed.
Mr. Justice Musseb. and Mr. Justice Bailey concur.