Bradbury v. Alden

• Decision Date: 10 April 1899
• Citation: 13 Colo.App. 208,57 P. 490
• Parties: BRADBURY v. ALDEN. [1]
• Court: Colorado Court of Appeals

57 P. 490

13 Colo.App. 208

BRADBURY v. ALDEN. ^[1]

Court of Appeals of Colorado

April 10, 1899

Error to district court, Arapahoe county.

Action by William C. Bradbury against Edward K. Alden. There was a judgment for defendant, and plaintiff appeals. Reversed.

Patterson, Richardson & Hawkins, for plaintiff in error.

Charles J. Hughes, Jr., and Branch H. Giles, for defendant in error.

THOMSON J.

When the record in this cause was lodged in this court, the defendant in error interposed a motion to strike the bill of exceptions from the files, on the ground that it was not tendered or presented to the judge at the time of the rendition of the judgment, nor until after the judge was without power or jurisdiction to sign it. Decision of this motion was reserved until the final hearing, and, upon application of the plaintiff in error, leave was granted him to file a supplemental transcript of the record. The cause has been argued and submitted. It is now reached for decision by us. But, before proceeding to a consideration of the questions presented by the assignment of errors, the motion to strike must be disposed of. The facts upon which the fate of the motion depends, as we find them in the original and supplemental transcript, are as follows: On the 16th day of February, 1893, during the January term of the court, a verdict was rendered in favor of the defendant in error, who was defendant below, and four days thereafter, at the same term, the plaintiff in error, who was plaintiff below, filed his motion for a new trial. On the 27th day of March following, and before the expiration of the January term, the plaintiff procured an order allowing him four months from that date within which to prepare and tender his bill of exceptions. The motion for a new trial was not disposed of during that term. Afterwards, on June 24 1893, at the April term of the court, the motion was taken up and overruled, and judgment entered on the verdict. The April term was adjourned on the 11th day of the following September. On the 25th day of July, 1893, the bill of exceptions was completed and ready to be tendered; but the judge being absent from Denver, the city in which the court was held, the plaintiff caused the bill to be deposited with the clerk of the court for the purpose of being presented to the judge for his signature, and the fact, date, and purpose of the deposit were indorsed on the bill by the clerk. On January 7, 1895, the judge signed the bill of exceptions.

It is provided by section 385 of the Code that in all cases in courts of record, where either party shall except to any ruling, decision, or opinion of the court, and shall reduce such exception or exceptions to writing, it shall be the duty of the judge to allow the same, and to sign and seal the same at any time during the term of the court at which such exceptions were taken, or at any time thereafter to be fixed by the court; and it has been held by our supreme court in Fechheimer v. Trounstiene, 12 Colo. 282, 20 P. 704, that when the party tenders his bill of exceptions within the time fixed by the statute or the order of the court, he has performed his duty, and his rights are protected, even though the bill be not actually signed until a time subsequent to the period fixed. The questions upon this motion, therefore are: First, was there a tender, or what was equivalent to a tender, of the bill? And, second, if there was, was it made in time? When the bill was ready to be tendered, the judge was absent from the city. His affidavit, which is before us shows that he was in the mountains at the head waters of the Rio Grande river, 25 miles or more from railroad or telegraph. In Fechheimer v. Trounstiene, supra, the fact was that when the bill of exceptions was prepared the presiding judge was absent from the state; and the court held that in such case a deposit of the bill, within the time fixed, with the clerk of the court wherein the cause was tried, together with the indorsement thereon by the clerk of the fact and date of the deposit, would be sufficient to protect whatever rights the litigant would otherwise have in the premises. In that case the judge was absent from the state, and in this he was within the state, but absent from the city. We do not think the court attached any significance to the judge's absence from the state, because it cited in support of its decision the case of People v. Lee, 14 Cal. 510, in which the judge was not absent from the state. The showing was that inquiry was unsuccessfully made for him at the court house, at his chambers, and at his place of residence; and it was held that the clerk's office was the proper place for the deposit of papers for the judge, in his absence from his chambers. It was the fact that he was not found where he might have been expected to be, and not the fact that he was at any particular place, which authorized the deposit of the bill with the clerk; and, so long as the judge is absent from his court and his chambers, we see no reason for a distinction between his absence out of the state and his absence within the state. On the 27th day of March, during the term at which this cause was tried, the court made an order allowing the plaintiff four months within which to tender his bill of exceptions. That time would expire on the 27th of July; but the bill was given to the clerk on the 25th day of July,--two days within the limit,--so that, measured by the order, the time for tender had not expired. But a motion for a new trial had been interposed, and judgment was not entered until the following term. In Stocking v. Morey, 14 Colo. 317, 23 P. 343, in which the Code provision we have mentioned was considered, it was held that where no ruling was made upon a motion for a new trial until the term subsequent to the trial, and final judgment was reserved until after the ruling should be made, a bill of exceptions presented within the time allowed by the court at the latter term was presented in apt time to preserve the entire record. The effect of that decision is that the proper term to sign the bill of exceptions, or to grant time for its presentation, is the term at which the judgment is finally entered; and the bill in this case was presented, by deposit with the clerk, during that term. The judge being absent, the deposit was equivalent to a tender. It was made while the order was in force, it was also made during the term at which final judgment was rendered, and in either case it was made in time. The motion will be overruled. The controversy was concerning title to certain mules, carts, scrapers, and other articles, constituting what is called a "grading outfit." The plaintiff testified substantially as follows: In 1886 he had a grading contract on the Colorado Midland Railroad, and gave the defendant, who had previously been in his employ as foreman in the prosecution of similar work upon other railroads, charge of a portion of this work, under an agreement with the defendant by the terms of which the latter was to perform the duties of foreman, was to receive $50 per month for himself, was to be charged $30 per month for each team of mules, and 20 per cent. of the value of the tools for each month's use of them, as well as the cost of supplies furnished to him, and the wages of the laborers, and was to be allowed as a credit the value of the work done by him. Upon the completion of the plaintiff's contract and a settlement had, if it was found that the work done by the defendant realized a profit after deducting the foregoing salary, charges, and expenses, the latter was to have the benefit of the gain and have the privilege of using it, as far as it would go, in the purchase of the tools and animals, in a certain order which had been agreed upon, at prices fixed or to be fixed. Before the completion of the contract and without a settlement, the defendant quit work, and was proceeding to remove the property, or a considerable portion of it, claiming it as his own. The testimony of the defendant was that the agreement under which he took charge of the work included an absolute and immediate sale of the entire property to him. The statement of the plaintiff and that of the defendant were therefore in direct conflict. According to the former, at the time of the attempted removal the property was the plaintiff's, and according to the latter the title was in the defendant. In this state of the...