Brown v. Keegan

• Decision Date: 02 May 1904
• Citation: 76 P. 1056,32 Colo. 463
• Parties: BROWN et al. v. KEEGAN.[*]
• Court: Colorado Supreme Court

76 P. 1056

32 Colo. 463

BROWN et al. v. KEEGAN.^[*]

Supreme Court of Colorado

May 2, 1904

Error to District Court, Lake County; Frank W. Owers, Judge.

Action by John T. Keegan against S. P. Brown and others. From a judgment in favor of plaintiff, defendants bring error. Reversed.

Stuart & Murray, for plaintiffs in error,

Chas D. Hayt, for defendant in error.

GABBERT C.J.

This action was originally brought in this court by the Gordon-Tiger Mining & Reduction Company, and entitled 'The Gordon-Tiger Mining & Reduction Company, Plaintiff in Error, v. John T. Keegan et al., Defendants in Error.' Thereafter the death of S. P. Brown, one of the defendants in error, was suggested, and motion made that his administrator be substituted in his stead, and that such administrator, as well as the other defendants in error, except Keegan, be permitted to be made plaintiffs in error. The motion substituting the administrator in place of the deceased, and to allow him to be made a plaintiff in error, was sustained but no order seems to have been entered permitting the others to be made plaintiffs in error, as requested in the motion. Subsequently the parties filing this motion filed an abstract of record based in part upon a transcript of record other than that originally lodged by the Gordon-Tiger Company. By this abstract those who had been designated defendants in error, except Keegan, were named as plaintiffs in error except that the administrator was substituted in place of S P. Brown, deceased. This abstract also contained what purported to be a copy of the assignment of errors on the part of those then appearing as additional plaintiffs in error. It also referred repeatedly to a 'second transcript,' upon which they relied in part to support the errors so assigned. At the oral argument counsel for defendant in error, Keegan, called attention to the fact that this transcript did not bear the filing mark of the clerk, that no assignment of errors had ever been filed except by the Gordon-Tiger Company, and that the record upon which the other plaintiffs in error relied had never been certified by the clerk of the trial court. The plaintiffs in error other than the Gordon-Tiger Company then moved for an order directing the clerk of this court to mark their transcript filed as of the date their abstract of record was filed. This motion is resisted by the defendant in error, Keegan, because, it is said, that the motion comes too late; that the record has never been certified properly; that the plaintiffs in error have been guilty of laches; and that to now allow this record to be filed would work a great hardship upon him. In support of this motion it is urged that no new writ of error was sued out by the plaintiffs in error, and that the writ sued out by the original plaintiff in error, the Gordon-Tiger Company, only brought here for review the judgment rendered against that company in its capacity as garnishee, and therefore only the proceedings which led up to the judgment against the garnishee can be reviewed.

From affidavits and other facts called to our attention in support of the motion for leave to file the supplemental or amended transcript, we are convinced that it was in fact lodged with the clerk of this court not later than the date the plaintiffs in error filed their printed abstract of record and assignment of errors, and that through some oversight the clerk neglected to mark the same 'Filed,' or note the filing on the docket. It has been in the office of the clerk ever since that date. The abstract of record above referred to referred to this transcript. From this source it must have been known to counsel for defendant in error that the plaintiffs in error relied upon this transcript, and considered it as having been properly filed. The defendant in error has joined in error as against those who subsequently appeared as additional plaintiffs in error, and the only objection urged by him until the time of the oral argument as to the nonfiling of this transcript appears in his brief, where it is stated, substantially, that the records do not disclose that these plaintiffs in error ever filed any transcript or assignment of errors, and that the bill of exceptions upon which their abstract is for the most part founded was signed at the instance of the Gordon-Tiger Company. In view of the fact that the amended transcript was actually lodged with the clerk at that time, and that counsel for defendant in error must have been cognizant of this fact, the objection thus urged was not sufficient; neither did it raise any question as to the certification of the transcript. By joining in error, the defendant in error has waived the suing out of a writ of error by the new plaintiffs in error. In looking through the additional transcript, we find an assignment of errors signed by counsel, and, from appearances, written at...