Browns v. Lutin

• Citation: 16 Colo.App. 263,64 P. 674
• Parties: BROWNS v. LUTIN.
• Decision Date: 08 April 1901
• Court: Colorado Court of Appeals

64 P. 674

16 Colo.App. 263

BROWNS v. LUTIN.

Court of Appeals of Colorado

April 8, 1901

Error to district court, Logan county.

Action by A.T. Browns against Charles F. Lutin. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

W.L. Hays, for plaintiff in error.

H.N Haynes, for defendant in error.

WILSON P.J.

This suit was brought by plaintiff Browns to recover possession of certain realty, from which he claimed to have been wrongfully and unlawfully ousted by the defendant, and also to recover damages for the alleged unlawful eviction. Plaintiff claimed possession by virtue of a lease for three years from the owner of the land, and defendant claimed title under a subsequent purchase from the owner and lessor. The defense was substantially to the effect that the plaintiff, prior to defendant's purchase, had agreed to a surrender of his lease. At the outset the sum of $10 only seems to have been the amount involved. The case was tried in the district court three times to juries, resulting in two verdicts--one for each of the parties--and in one disagreement. After the last trial, and the failure of the jury to agree, the cause was by written stipulation of the parties, submitted to the court for determination upon the evidence as introduced before the jury. The judgment of the court was in favor of the defendant. There have been, therefore, four trials.

As we view the case, it turns solely upon a question of fact. The evidence on neither side was very conclusive, and was in the highest degree conflicting; but the question having been resolved by the court in favor of the defendant, and there being sufficient evidence to support the finding, this court under the well-settled and familiar rule in such cases, will not undertake to disturb the finding or judgment. We cannot agree with counsel that there was no evidence whatever to sustain the finding. The fact alone that the jury at one trial, and the court at another trial, had made the same findings as to the essential and controlling fact, should have some weight in considering whether there was sufficient evidence to support the verdict of the one and the finding of the other.

At some stage of the proceedings (but the precise stage we cannot determine from the record) the court allowed the defendant to file an amendment to his answer, in which it was claimed another defense was attempted to be set up. Plaintiff complains of this as being grievous and...