Iron Silver Min. Co. v. Campbell

Citation61 F. 932
Decision Date07 May 1894
Docket Number356.
PartiesIRON SILVER MIN. CO. v. CAMPBELL et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Joel F Vaile (Edward O. Wolcott and Frank W. Owers, on the brief) for plaintiff in error.

Thomas M. Patterson, for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN Circuit Judge, .

Is the defeated party in an action for the recovery of the possession of real property entitled to a new trial as of right, under the Colorado statutes, after a second judgment has been rendered against him on the verdict of a jury in a case in which the first judgment to the same effect had been reversed, and a new trial granted for cause?

The statutes of Colorado provide that the distinct forms of actions and suits heretofore existing are abolished, and that every action shall be prosecuted in the name of the real party in interest. Colo. Code Civ. Proc. 1887, Secs. 1, 3. Section 265, c. 23, of this Code, provides that:

'An action to recover the possession of real property may be brought in any case where an action of ejectment or a writ of right might have been brought at common law, or in any case where the plaintiff claims a legal estate in real property or lands, in fee, or for life, or for years, or claims the legal right to occupy and possess the same. * * * '

And section 272 of the same chapter provides that:

'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. * * * '

It is now settled that litigants in the national courts are entitled to the same rights and remedies under this statute as those in the state courts. Miles v. Caldwell, 2 Wall. 35; Smelting Co. v. Hall, 106 U.S. 86, 88, 1 Sup.Ct. 128.

May 21, 1885, Peter Campbell, W. Y. Suydam, Charles S. Thomas, Betty Wheeler, and Martha E. Allen, the plaintiffs below and the defendants in error in this court, recovered a judgment in the circuit court for the district of Colorado against the Iron Silver Mining Company, the defendant below and the plaintiff in error here, in an action to recover the possession of the real property described in their complaint in this action. No application was made to vacate this judgment under this statute, but a writ of error was sued out of the supreme court to reverse it. April 28, 1890, this judgment was reversed for error by the supreme court, and a new trial was ordered. April 3, 1893, after a new trial pursuant to the order of the supreme court, and upon the verdict of a jury, a second judgment in favor of the plaintiffs below was rendered in the circuit court. Before the first day of the term next succeeding the rendition of this judgment, the plaintiff in error paid all the costs of the action, and thereafter made a motion to vacate the judgment, and for a new trial, as of right, under section 272 of the Code of Colorado, supra. May 20, 1893, that motion was granted by the circuit court, Judge Thomas presiding. His opinion appears in 56 F. 133. July 22, 1893, the circuit court, in which other judges were then presiding, vacated the order of May 20, 1893, and directed the judgment of April 3, 1893, to stand. This order is assigned as error, and will first be considered.

The fiction by which John Doe and Richard Roe were made to represent the plaintiff and defendant, respectively, in an action of ejectment at common law permitted any number of actions of this character to be maintained between the same parties in interest after verdict and judgment. The litigation terminated only when the unsuccessful party tired of his futile efforts, or when a court of equity, after repeated trials at law resulting in like verdicts and judgments, enjoined the unsuccessful party from harassing, by future actions in ejectment, him who had recovered these judgments. The effect of section 3 of the Code of Colorado, which required actions in ejectment to be prosecuted in the name of the real party in interest, was to put an end to this practice. Under that section, standing alone, the first verdict and judgment in ejectment, as in other cases, unless it was set aside or vacated for cause, would be conclusive of the rights of the parties, that were, or might have been, there litigated. The action of ejectment, or, as the Colorado Code has it, the 'action to recover the possession of real property,' is the favorite action in which to try the title to such property. Real property has long been held in higher esteem among the English-speaking nations than any other form of property, and the titles to it have been guarded with jealous care. The legislature of Colorado, in common with those of nearly all the other states that abolished the fiction that prevailed in the action of ejectment, evidently deemed the title to real property too sacred to be risked upon the result of a single -rial. Doubtless, they feared that the real owner might sometimes lose the first trial through some unknown defect in his own title, that to know was to remedy, or, through some apparent but groundless title in his opponent, that to be seasonably apprised of was to defeat. To guard the real owner against these evils the legislature of Colorado...

To continue reading

Request your trial
4 cases
  • Files v. Davis
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • November 12, 1902
    ......99, 12 Sup.Ct. 353, 36. L.Ed. 90; Mining Co. v. Campbell, 10 C.C.A. 172, 61. F. 932. . . In. Sowles v. Witters (C.C) ......
  • Campbell v. Iron-Silver Mining Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 22, 1897
    ...and the case was remanded for a new trial, pursuant to the Colorado statute. Mining Co. v. Campbell, 27 U.S.App. 65, 10 C.C.A. 172, and 61 F. 932. The case was again tried in circuit court, pursuant to the order of this court, on June 16, 1896; and upon such third trial of the case the jury......
  • Shreve v. Cheesman
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 2, 1895
    ......p. 903, Sec. 6; Standley v. Roberts,. 8 C.C.A. 305, 308, 59 F. 836; Iron Silver Min. Co. v. Mike & Starr Gold & Silver Min. Co., 6 C.C.A. 180, 56. F. 956; Mining Co. v. Campbell, 10 C.C.A. 172, 61 F. 932. The fact that the plaintiffs in error are ......
  • Campbell v. Iron-Silver Mining Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 15, 1897
    ...81 F. 1002 CAMPBELL et al. v. IRON-SILVER MIN. CO. No. 905.United States Court of Appeals, Eighth Circuit.February 15, 1897 . In. Error to the Circuit Court of The United States for the. District of Colorado. . . Edward. O. Wolcott and Joel F. Vaile, for defendant in error. . . No. opinion. Docketed and ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT