Butler v. Rockwell

• Decision Date: 07 March 1892
• Citation: 29 P. 458,17 Colo. 290
• Court: Colorado Supreme Court
• Parties: BUTLER et al. v. ROCKWELL et al.

29 P. 458

17 Colo. 290

BUTLER et al. v. ROCKWELL et al.

Supreme Court of Colorado

March 7, 1892

Appeal from district court, Arapahoe county.

Suit by Lewis C. Rockwell and others against Hugh Butler and others on an appeal-bond. Judgment for plaintiffs. Defendants appeal. Reversed on cross assignment of error by appellees and new judgment directed.

Syllabus by the Court

1. The constitutionality of the late supreme court commission will not be considered in a private controversy which was not referred to the commission for examination, and where the cause, in which the judgment sought to be impeached was rendered, has according to the records of the supreme court and in conformity with its procedure, passed to the jurisdiction of the trial court; such judgment being only indirectly drawn in question through suit upon the appeal-bond given in connection with the former review thereof.

2. In civil actions, privileges which rise to the dignity of constitutional or statutory rights may be waived; and where they relate to procedure in the court, such as oral arguments, their exercise is subject to reasonable regulation.

3. By a rule of the supreme court a party who interposes a timely written request before the court for an oral argument upon the final hearing is entitled thereto; but, if neither party interpose such request until after the cause is finally determined, he will be held to have waived his right thereto; and such waiver applies also in cases sent to the supreme court commission for preliminary consideration and report.

4. A judgment supersedes the original contract or cause of action and constitutes a new and liquidated debt. This debt and the liability for interest thereon, as provided by statute at the date of the judgment, are obligations binding upon the debtor until the judgment is reversed or satisfied. It is not in the power of the legislature to alter the rate of interest to which a creditor is entitled upon his pre exising judgment.

Hugh Butler, for appellants.

L. C. Rockwell, for appellees.

HELM J.

On the 29th of December, 1887, judgment was rendered in the district court of Lake county, in favor of Rockwell et al., and against Butler and Wright, for the sum of $9,008.33. Butler and his co-defendant thereupon prosecuted an appeal to this court, executing an appeal-bond, with Sullivan and Thatcher as sureties. Upon review a judgment of affirmance was here entered, (Butler v. Rockwell, 14 Colo. 125, 23 P. 462,) and the cause was remanded to the court below. The present suit was then begun on the appeal-bond thus executed. Service being obtained upon Butler, one of the principals, and also upon the two sureties, the cause was tried, and judgment was duly rendered in favor of plaintiffs for the amount of the judgment in the original cause, plus interest thereon. To review the latter judgment, the present appeal was taken. The sole defense relied on in the court below was that there had been no affirmance by this court of the judgment, to secure a review of which the appeal-bond in question was given, and therefore that no right of action upon the bond had accrued. This defense was predicated upon the contention that the supreme court commission was an unconstitutional body, and that opinions prepared and reported by it and adopted by the court were nullities. The answer also alleged that the original cause was pending in the supreme court of the United States upon writ of error to this court. But the latter feature of the controversy was eliminated by the undisputed averment in the replication that since that answer was filed said writ of error had been dismissed for want of jurisdiction. See Butler v. Gage, 138 U.S. 52, 11 S.Ct. 235.

Doubts were entertained by many members of the bar concerning the constitutionality of the law providing for the late supreme court commission. But, since that law has been repealed and the commission no longer exists, no general or public interest would be subserved by a decision of the question now pressed upon our attention. Besides, for reasons that will be presently stated, such a determination, in connection with the case before us, would, to say the least, be of loubtful propriety. We suggest in passing, however, that counsel are mistaken when they suppose that this court abdicated its judicial functions in any of the cases that were referred to the commission for preliminary investigation. No report from that body was ever accepted and promulgated, pro forma, as the opinion of the court. On the contrary each and every report received thorough re-examination, aided by the printed arguments and abstracts filed in the cause, oral hearings also being frequently allowed. So that, as a matter of fact, the report as finally adopted expressed the judicial views of this tribunal. In the case of De Votie v. McGerr, 14 Colo. 577, 23 P. 980, we unanimously declined to investigate the constitutionality of the commission statute. Counsel in that case urged this challenge in the petition for a rehearing, where the judgment complained of followed a reference to the commission, and accorded with views reported by that body. The present contention that in the original cause of Butler v. Rockwell, supra, appellants did not have their day in court, obviously involves a more remotely collateral attack upon the commission law than did the application in the De Votie Case. This is a private controversy to...