69 F. 785 (8th Cir. 1895), 560, Shreve v. Cheesman

Docket Nº:560.
Citation:69 F. 785
Party Name:SHREVE et al. v. CHEESMAN et al.
Case Date:September 02, 1895
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 785

69 F. 785 (8th Cir. 1895)

SHREVE et al.



No. 560.

United States Court of Appeals, Eighth Circuit.

September 2, 1895

Page 786

Thomas M. Patterson and Charles C. Parsons, for plaintiffs in error.

Tyson S. Dines (Charles J. Hughes, Jr., on the brief), for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge.

Does section 272, c. 23, of the Colorado Code of Civil Procedure of 1887, require the defeated party, in an action to recover the possession of real property to pay the costs of a prior mistrial of the action, in which the jury has disagreed, to entitle him to a new trial as of right under that section? If so, do the facts that the circuit court in which the action was pending had, several years prior to his application, decided that this section did not require such payment, and that the defeated party complied with the provisions of that section as it had been construed by that court, relieve him from the consequences of his failure to comply with the terms of the section as properly construed? These are the principal questions presented by this record.

The defendants in error, Walter S. Cheesman and George W. Clayton, brought an action in the court below against the plaintiffs in error, James A. Shreve, J. A. Perkins, and others, for the possession of certain real property, and for damages for the removal of minerals therefrom. Issues were joined, the action was tried, and the jury disagreed. At the May term of the circuit court in 1893 the action was tried again, a verdict was returned, and on June 27, 1893, a judgment was rendered in favor of the defendants in error. Section 272 of the Code of Civil Procedure of Colorado provides:

'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.'

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On November 3, 1890, in Parkhurst v. Price, 1 the resident district judge and acting circuit judge of the district of Colorado delivered an opinion, in which he held that a party who was finally defeated in an action for the recovery of possession of real property was not required to pay the costs of a prior mistrial of the action in which the jury had disagreed, in order to entitle him to a new trial under this section. In accordance with this ruling, the plaintiffs in error paid all the costs in this action, except the costs of the mistrial, and on November 2, 1893, before the term next succeeding the entry of the judgment, applied for a new trial under this section. It so happened that the district judge of another district was then temporarily holding the circuit court in the district of Colorado. He heard this application, took it under advisement and on May 26, 1894, denied it, on the ground that the defendants in error had failed to pay the costs as required by law. On November 23, 1894, the plaintiffs in error sued out the writ of error in this case to reverse this order denying the new trial.

A motion was made by the defendants in error to dismiss this writ because the plaintiffs in error had, on June 26, 1894, sued out of the supreme court of the United States a writ of error to reverse the judgment in this action, on the ground that the court below had no jurisdiction of the case. The order denying the new trial, which the statute granted as a right, is a final decision that is reviewable in this court under the act which established it. 26 Stat. 828, c. 517, Sec. 6; Supp.Rev.St. 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 exercising a right, given to them by the same act of congress, to the decision of the supreme court upon another question in this case, is no reason for us to deprive them of their right to a hearing and determination of the question committed to our decision by that act. The fact that our writ of error was not issued until after the supreme court had issued its writ is not material. The question before the supreme court arises upon proceedings anterior to the judgment, and the question before this court upon proceedings subsequent to the judgment, so that the requisite records, as well as the questions before the two courts, are different, separate, and distinct.

The fact that the bill of exceptions was certified after the writ of the supreme court issued is not a fatal objection to the bill. It was made and certified during the term at which the order denying the new trial was made. It contains a record of the facts disclosed at the hearing which resulted in that order. The fact that a writ of error had been issued to review the judgment certainly did not deprive the court below of its jurisdiction, or relieve it of its duty, to make a true record of the proceedings in that court after the judgment. This bill of exceptions is that record. It was rightfully made, and is properly in this case for our consideration. Hunnicutt v. Peyton, 102 U.S. 333, 353, 354. The motion to dismiss is denied.

Section 272 of the Colorado Code, supra, gives to the party against

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whom a judgment for the recovery of real property is rendered a right 'to pay all costs recovered thereby,' and then to have a new trial of the action. The statutes of Colorado provide:

'If any person shall sue in any court in this state in any action, real, personal, or mixed, or upon any statute for any offense or wrong immediately personal to the plaintiff, and shall recover any debt or damages in such action, then the plaintiff or demandant shall have judgment to recover against the...

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