Iron Silver Min. Co. v. Mike & Starr Gold & Silver Min. Co.

• Decision Date: 26 June 1893
• Docket Number: 255.
• Citation: 56 F. 956
• Parties: IRON SILVER MIN. CO. v. MIKE & STARR GOLD & SILVER MIN. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 956

IRON SILVER MIN. CO. v. MIKE & STARR GOLD & SILVER MIN. CO.

No. 255.

United States Court of Appeals, Eighth Circuit.

June 26, 1893

Statement by THAYER, District Judge:

The plaintiff in error brought an action of ejectment against the defendant in error in the district court for Lake county Colo., on the 20th of February, 1885. Subsequently the action was removed to the United States circuit court for the district of Colorado, and was tried before a jury in that court, the trial resulting in a verdict for the defendant. A motion for a new trial for errors alleged was filed and overruled in the circuit court, and a judgment was rendered in favor of the defendant on November 21, 1885. To reverse such judgment the plaintiff below prosecuted a writ of error to the supreme court of the United States, but the record does not show when such writ of error was sued out. It does disclose, however, that a mandate from the supreme court affirming the judgment of the circuit court, was filed in the circuit court on November 29, 1892. 12 S.Ct. 543. Section 272 of chapter 23 of the Code of Procedure of Colorado, which chapter is entitled, 'Of Actions for Possession and Damages,' is as follows:

'Whenever judgment shall be rendered against either party under the provisions of this chapter, it shall be lawful for the party against whom such judgment is rendered, his heirs or assigns at any time before the first day of the next succeeding term to pay all costs recovered thereby, and upon application of the party against whom the same was rendered, his heirs or assigns, the court shall vacate such judgment and grant a new trial in such case, and neither party shall have but one new trial in any case, as of right without showing cause. And after such judgment is vacated, the cause shall stand for trial, the same as though it had never been tried. * * *'

Acting under this provision of the Colorado Code, the plaintiff in error, on December 22, 1892, filed a motion in the circuit court to vacate the judgment theretofore rendered in the cause, and to grant a new trial. The motion averred (and the fact is conceded) that the judgment of affirmance was rendered by the supreme court of the United States on February 29, 1892, and that thereafter and prior to the first day of the next succeeding term of the circuit court for the district of Colorado the plaintiff paid all the costs recovered in the action, as the statute requires.

The circuit court overruled said motion, whereupon the plaintiff duly excepted to such action, and sued out the present writ of error.

Harvey Riddell, (Frank W. Owers, James C. Starkweather, and Edward L. Dixon, on the brief,) for plaintiff in error.

Thomas M. Patterson, for defendant in error.

Before BREWER, Circuit Justice, SANBORN, Circuit Judge, and THAYER, District Judge.

THAYER District Judge, after stating the case as above, .

The controversy before us turns on the construction of the above-quoted section of the Colorado Code of Procedure, and the question to be determined is this: When, within the meaning of the statute, is a judgment rendered, so that the time limited for the payment of costs, in order to secure a new trial, begins to run? It is not questioned that the provision requiring the payment of costs prior to the first day of the next succeeding term after the judgment is rendered is a condition precedent to the right to have the judgment vacated. On the one hand, however, it is contended that on the facts disclosed by the present record the judgment was not rendered until it was affirmed by the supreme court on February 29, 1892, and that the costs were paid in time if paid prior to the next succeeding term of the United States circuit court for the district of Colorado; on the other hand, the contention is that the time limited to pay the costs began to run from November 21, 1885, when the judgment was first entered in the circuit court.

The courts of Colorado do not appear to have construed the statute to which the discussion relates, but it was stated in argument (and the statement is not denied) that the universal practice in that state has hitherto been to treat the judgment as rendered on the day it was entered in the trial court, for the purpose of computing the time when costs must...