Campbell v. Iron-Silver Min. Co.

• Decision Date: 20 May 1893
• Parties: CAMPBELL et al. v. IRON SILVER MIN. CO.
• Court: U.S. District Court — District of Colorado

56 F. 133

CAMPBELL et al. v. IRON SILVER MIN. CO.

United States Circuit Court, D. Colorado.

May 20, 1893

T. M Patterson and Clinton Reed, for plaintiffs.

Wolcott & Vaile and F. W. Owen, for defendant.

THOMAS District Judge.

This is an action in the nature of an ejectment suit to recover the possession of a mining lode. Prior to 1890 the plaintiffs recovered judgment in the action in this court. The case was submitted to the court without a jury. The judgment was reversed by the supreme court of the United States on writ of error on April 28, 1890, and a new trial granted. Mining Co. v. Campbell, 135 U.S. 286, 10 S.Ct. 765. The second trial of said action was had at the last term of this court and resulted in a judgment for the plaintiffs, Peter Campbell et al., against the defendant mining company. Before the first day of this term of court the defendant paid all the costs recovered in said judgment at the last term of the court, as aforesaid, and promptly, at the opening of the present term, applied to the court to vacate said judgment and grant a new trial therein as a matter of right, under and in pursuance of the statute of this state. Section 272, Civil Code 1887. Said statute reads as follows:

'Whenever judgment shall be rendered against either party under the provision of this chapter, it shall be lawful for the party against whom such judgment is rendered, his heirs or assigns at any time before the first day of the next succeeding term, to pay all costs recovered thereby, and upon application of the party against whom the same was rendered, his heirs or assigns, the court shall vacate such judgment, and grant a new trial in such case; but neither party shall have but one new trial in any case as of right, without showing cause; and, after such judgment is vacated, the cause shall stand for trial the same as though it had never been tried.'

The plaintiffs oppose said motion upon the ground that the statute does not apply to the present judgment, and they contend that the statute is only applicable upon the facts herein to the first judgment; that the defendant, having failed to pay the costs before the next succeeding term, after the first judgment was obtained, and then taking a new trial under the statute, has waived its right, and is now concluded by the terms of the statute itself. This contention necessarily raises and involves the question whether or not the intention of this statute was to give the new trial after a judgment regularly and rightfully obtained, or whether it was the intention to conclude the defeated party unless he takes his new trial after the rendition of a judgment, though it is erroneous, and subject to be set aside on motion or reversed on writ of error. In other words, is the defeated party bound to make his election, and take his new trial as of right under the statute, or be concluded from doing so thereafter, although he obtains a reversal of that judgment, and a new trial for error of law and fact, or either? So far as I am advised, the supreme court of this state has not construed this statute in this respect. It is quite apparent that the intention of the statute was to adopt the common-law rule of granting new trials in ejectment cases as a matter of right, with two important limitations, namely, in respect to the number of trials, and the time when they must be taken. The supreme court of the United States, construing this statute, held that each party against whom, in turn, a verdict might be rendered, shall have a right to one new trial, and also held that the provision is binding on the courts of the United States sitting in the state of Colorado. Equator Min. & Smelt. Co. v. Hall, 106 U.S. 86, 1 S.Ct. 128. That case was certified to the supreme court upon a division of opinion as to whether or not each party, if defeated in the action, was entitled to a new trial under the statute as a matter of right; the finding and judgment having been for the defendant on the first trial, and a new trial had as of right under the statute by the plaintiff, and the finding and judgment being for the plaintiff in the second trial, and an application by defendant for a new trial on his part as matter of right. The question herein was not involved in that case, and reference to it is only made for the purpose of showing that the supreme court held that each party is entitled to one new trial as matter of right. In the discussion of the question involved in that case, leading up to that conclusion, Justice Miller, speaking for the court, said, (106 U.S. 87, 1 S.Ct. 128:)

'A title to real estate has, under the traditions of the common law, been held, in all the states where the law prevailed, to be too important,--we might almost say too sacred,--to be concluded forever by the result of one action between the contesting parties. Hence those states which, by abolishing the fictions of the action at the common law, and substituting a direct suit between the parties actually claiming under conflicting titles, which, according to the nature of this new proceeding, would end in a judgment concluding both parties, have found it necessary to provide for new trials to such extent as each state legislature has thought sound policy to require. These provisions for new trials in actions of ejectment are not the same in all the states, but it is believed that almost all of them which have abolished the common-law action have made provision for one or more new trials as a matter of right.'

The fair inference deducible from that opinion is that Justice Miller was referring to a valid binding judgment,--'a judgment concluding both parties,'--and not an invalid judgment. An invalid judgment would have no binding force or effect unless submitted to by the parties, but exist only in form until the error was made apparent by proper judicial proceeding, and then the case would stand as though no formal judgment ever had been rendered; the judgment would be a nullity. It is fair...