Allen v. Colorado Cent. R. Co.

Decision Date17 February 1896
Citation43 P. 1015,22 Colo. 238
PartiesALLEN v. COLORADO CENT. R. CO. et al.
CourtColorado Supreme Court

Error to district court, Larimer county.

Action by Cora I. Allen against the Colorado Central Railroad Company and others. There was a judgment entered on a verdict for defendants, and plaintiff brings error. Affirmed.

A. H De France, for plaintiff in error.

Teller Orahood & Morgan, for defendants in error.

CAMPBELL J.

This was an action by the plaintiff in error against the defendants in error for the recovery of possession of real property. The trial was before a jury, the verdict being for the defendants, on which a judgment was entered, which the plaintiff seeks to have reversed upon this writ of error. The chief controversy arises under the amended third defense of the answer, which, in substance, alleges that in certain condemnation proceedings theretofore pending in the county court of the county in which this real estate was situate, wherein the Colorado Central Railroad Company was petitioner and the plaintiff was respondent,--the object of the proceedings being to condemn the property in question for railroad purposes,--an award and compensation were made to the respondent in that behalf; that such proceedings however, were, for certain reasons, not necessary here to specify, invalid, but that, nevertheless, plaintiff in error here (respondent in that action), with full knowledge of those proceedings and their object, and with full knowledge of such award being made, accepted the sum of $180 as full payment of such award, and has ever since, and with full knowledge of the invalidity of the award, retained said money so paid, and has never returned or tendered the same to said defendant.

A preliminary question is raised by the plaintiff in error attacking the order of the trial court in setting aside the default and judgment thereunder, and granting a new trial. Assuming that plaintiff in error is in a position to urge this objection, our examination of the record satisfies us that the trial court was right in its ruling. The defendant had an unquestioned right to a new trial, upon compliance with the provisions of the statute and the orders of the court in relation thereto, and it seems that such compliance was had.

The sole question submitted to the jury by the trial court, by its instructions, was whether or not the plaintiff in this action, as the respondent in the...

To continue reading

Request your trial
2 cases
  • Potter v. Ajax Mining Co.
    • United States
    • Utah Supreme Court
    • 11 Julio 1900
    ...Railroad, 13 Utah 1; Silva v. Pickard, 14 Utah 245; Reese v. Morgan, Min. Co., 54 P. 760; Horton v. Jack, 115 Cal. 29; Allen v. C. C. R. Co., 22 Colo. 238; 43 P. 1015. principle of res adjudicata on a second appeal of the same cause applies to all questions which might have been decided as ......
  • Percy Consol. Mining Co. v. Hallam
    • United States
    • Colorado Supreme Court
    • 17 Febrero 1896

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