Butts v. Sauve

• Decision Date: 29 March 1926
• Docket Number: 11310.
• Citation: 79 Colo. 317,245 P. 713
• Parties: BUTTS v. SAUVE.
• Court: Colorado Supreme Court

245 P. 713

79 Colo. 317

BUTTS v. SAUVE.

No. 11310.

Supreme Court of Colorado

March 29, 1926

Rehearing Denied May 3, 1926.

Department 2.

Error to District Court, Clear Creek County; Samuel W. Johnson Judge.

Suit by Edward Butts against David B. Sauve, trustee in bankruptcy of the Colorado Central Mines Company. Judgment for defendant and plaintiff brings error.

Affirmed.

On Motion for Rehearing.

John J. White, of Georgetown, for plaintiff in error.

Ernest Morris, of Denver, for defendant in error.

DENISON J.

Butts was defeated in an adverse suit brought by him against Sauve to recover that portion of the Moraine placer, claimed by the latter, which was covered by the Homestake and Four Brothers lode claims, claimed by the former. The court directed a verdict for defendant, and plaintiff brings error. He claims there is no evidence to support the judgment.

At the close of the evidence both sides moved for a directed verdict, which, under our decisions, left the case to the court. Saxton v. Perry, 107 P. 281, 47 Colo. 263, 269; Auto Co. v.Petter, 212 P. 823, 72 Colo. 570; Boldt v. Motor Securities Co., 218 P. 743, 74 Colo. 55; Catlin v. Moynihan 230 P. 1114, 76 Colo. 164. There was some evidence to support a finding that plaintiff's claim was not well founded and the consequent dismissal thereof; therefore we cannot disturb that part of the judgment, and, that being so, he has no standing to object that the defendant's claim was not supported by evidence. Connolly v. Hughes, 71 P. 681, 18 Colo.App. 372; Kirk v. Meldrum, 65 P. 633, 28 Colo. 453. It follows that the admission of improper evidence, if any was admitted, in support of defendant's title is not a matter of which plaintiff can now complain.

Judgment affirmed.

ALLEN, C.J., and WHITFORD, J., concur.

On Motion for Rehearing.

DENISON J.

The point was made that we were wrong in saying that a plaintiff who had shown no right in himself could not object to the insufficiency of the pleading or proof of the defendant in an adverse claim. It is true that Thomas v. Chisholm, 21 P. 1019, 13 Colo. 105, was reversed because the allegations and proof of the defendants were insufficient to support their claim to a patent from the United States, but it does not there appear whether the allegations and proof of the plaintiff were sufficient to support such claim for him. In Kirk v. Meldrum, 65 P. 633, 28 Colo. 453, it was held that a plaintiff in an adverse suit, who had failed to prove a title as against the United States, i. e., his right to a patent, could not object to a mere dismissal of the suit without any judgment in favor of the defendant's title. The action of the lower court was upon motion for nonsuit. In Connolly v. Hughes, 71 P. 681, 18 Colo.App. 372, it was held that a failure by a plaintiff in an adverse suit to offer any evidence in his own behalf was a waiver of his claim so that he could not object afterwards that the defendants had not shown a right to a verdict and judgment in their favor.

Now we have a case where the plaintiff, as we have shown, must be assumed to have failed to prove his case as against the United States. What standing has he to object that the judgment is in favor of the defendant? We cannot see that he has any. The United States is not a party to the proceedings. At...