County Court of City & County of Denver v. Eagle Rock Gold Min. & Reduction Co.

• Decision Date: 01 May 1911
• Citation: 115 P. 706,50 Colo. 365
• Court: Colorado Supreme Court
• Parties: COUNTY COURT OF CITY AND COUNTY OF DENVER et al. v. EAGLE ROCK GOLD MINING & REDUCTION CO. ECKEL v. SAME.

115 P. 706

50 Colo. 365

COUNTY COURT OF CITY AND COUNTY OF DENVER et al. v. EAGLE ROCK GOLD MINING & REDUCTION CO.

ECKEL v. SAME.

Supreme Court of Colorado

May 1, 1911

Error to District Court, City and County of Denver; Peter L Palmer, Judge.

Action by Homer C. Eckel and another against the Eagle Rock Gold Mining & Reduction Company, in which plaintiff Eckel was substituted as sole plaintiff, and, having recovered judgment by default, defendant moved to set aside the judgment and to stay execution. These motions being denied, defendant prayed an appeal to the district court, and, this having been granted, plaintiff moved for an order directing the sheriff to proceed with a sale under an execution levied on the judgment, and before hearing defendant filed a petition for writ of certiorari. Plaintiff moved to quash the writ and also to dismiss the appeal, and, these motions having been denied, plaintiff brings error. Reversed and remanded, with directions.

Plaintiff in error, Eckel, and one Dixon, doing business as copartners commenced an action in the county court of the city and county of Denver against defendant in error, the Eagle Rock Gold Mining & Reduction Company, to recover the purchase price of machinery sold to the latter. The defendant answered, and such proceedings were had that plaintiff in error was substituted as the sole plaintiff, and the cause set down for trial on a date fixed. On that date the cause was regularly called for trial, the plaintiff appearing by his counsel, the defendant not appearing either in person or by attorney, and the court, having heard the evidence introduced on the part of plaintiff, rendered judgment January 12, 1906, in his favor. Six days later an execution was issued on the judgment. On the next day, or seven days after the judgment was rendered, the defendant filed two motions, one to stay the levy of the execution, and the other to set aside the judgment. In the latter motion the judgment is referred to as one taken by default. These motions were set for hearing, and, according to the record of the county court, were heard and determined 15 days after the judgment was rendered, or January 27th. February 19th following the defendant filed another motion to set aside the judgment. This motion was heard, and denied on February 24th, to which ruling the defendant then and there excepted, and prayed an appeal to the district court, which was allowed, upon condition that it file a bond in the sum of $1,600 within 20 days from that date. Within the time so fixed the bond was filed and approved. Two days after the filing and approval of the bond, the plaintiff filed a motion for an order requiring the sheriff to whom the execution had been directed and delivered to proceed to sell the property levied upon thereunder, based upon the ground that an appeal from the judgment under which the execution issued had not been taken. This motion was duly set for hearing. In the meanwhile the defendant filed in the district court a petition for a writ of certiorari in which it alleged, in so far as material to consider, that within 10 days from the entry of the judgment in the county court it prayed an appeal to the district court, which was refused, for the reason then stated by the judge, that the judgment was a default judgment, and that a motion to set it aside was necessary, and must be filed and heard before an appeal to the district court could be prayed or allowed; that, in obedience to this ruling, it filed its motion January 19th to vacate and set aside the judgment, and also a separate motion to recall the execution issued thereon; that on January 29th the latter motion was denied and that it is contended on the part of the plaintiff that at the same time the motion to set aside the judgment was also denied, but upon information and belief defendant alleges the fact to be that the motion to vacate the judgment was either continued or leave granted to file a new motion, or in some manner the right of the defendant to have the question passed on as to whether or not the judgment should be vacated and set aside was reserved by the court for further consideration; that on February 19th the defendant filed another motion to vacate and set aside the judgment, which motion, as well as the one filed January 19th, were heard by the court on February 24th, and denied. The petition then sets out that the appeal was prayed for and allowed on condition that a bond be filed and approved within 20 days in the sum of $1,600, which bond was later filed and approved within the time fixed. It is then alleged that the clerk requested the sheriff to return the execution; that the sheriff had made a levy thereunder, and advertised the property levied upon for sale; and that he has refused to return the execution, and has announced his intention to proceed with the sale. On this petition a writ was issued by which the county court was directed to certify to the district court the full record and transcript of all the proceedings in the case, and the sheriff commanded to forthwith certify and return the execution on the judgment and to desist from any...