Crebbin v. Shinn

• Decision Date: 14 December 1903
• Citation: 74 P. 795,19 Colo.App. 302
• Parties: CREBBIN v. SHINN et al.
• Court: Colorado Court of Appeals

74 P. 795

19 Colo.App. 302

CREBBIN v. SHINN et al.

Court of Appeals of Colorado

December 14, 1903

Appeal from District Court, Montrose County.

Action by Alfred Crebbin against E.E. Shinn and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Samuel G. McMullin, for appellant.

F.D Catlin, for appellees.

MAXWELL J.

A general demurrer to the complaint was sustained, and, plaintiff electing to stand by his complaint a judgment of dismissal was entered. By virtue of 1 Mills' Ann.St. § 680, costs follow a judgment upon a demurrer. Appellee contends that this case is not appealable because there is no judgment, except for costs, against appellant. This court has held that appeals lie to this court in all civil cases, regardless of the amount of the judgment subject only to the limitation that the judgment is the final judgment of a court of record. Livermore v. Truesdell, 7 Colo.App. 470, 43 P. 663. It is also contended that, because it does not appear from the abstract of record that a bill of exceptions was filed, the judgment cannot be reviewed. Decisions of courts of record sustaining or overruling demurrers are a part of the record proper, and are reviewable by the appellate courts without a bill of exceptions. Mills' Ann.Code, § 387.

The complaint avers that July 2, 1888, Robert L. Shinn, by a promissory note of that date, agreed to pay, five years thereafter, $900, to the Jarvis-Conklin Mortgage Trust Company, with interest at 7 per cent., payable semiannually. To secure payment of the note, he executed a deed of trust, ordinary form, to Samuel M. Davis, trustee, upon certain lands in Delta county owned by him. February 21, 1890, by a quitclaim deed, for the expressed consideration of $1 he conveyed the land to E.E. Shinn, one of the appellees. Thereafter E.E. Shinn paid interest on the note to the Jarvis-Conklin Mortgage Trust Company to July 1, 1893, when E.E. Shinn and his wife, Nettie Shinn, appellees herein, executed the following writing:

"Extension Agreement and Coupons.

"Kansas City, Mo., July 1st, 1893.

"The undersigned hereby covenants that he is the legal owner of the premises conveyed to the Jarvis-Conklin Mortgage Trust Company, by a certain trust deed, given to secure the payment of a promissory note for the sum of $900.00, payable July 2nd, 1893, to the order of the said Jarvis-Conklin Mortgage Trust Company, upon which note the sum of $900.00 remains unpaid; and in consideration of the extension of the time for the payment of said sum of nine hundred dollars for the term of five years from the maturity thereof, I hereby agree to pay to the Jarvis-Conklin Mortgage Trust Company, or its assigns, interest upon said principal note from the day whereon the same by its terms becomes due, to wit: July 2nd, 1893, at the rate of six per cent per annum, payable semi-annually for and during said term of extension, according to the tenor and effect of certain extension coupon notes of even date herewith. Both principal and interest to be paid at the office of the Jarvis-Conklin Mortgage Trust Company, Kansas City, Missouri, when due, and in case of default in payment of interest, or in case of non-payment of taxes or breach of any of the covenants contained in said trust deed it shall be optional with the Jarvis-Davis Mortgage Trust Company, or its assigns, to declare said principal debt immediately due and payable.

"E.E. Shinn.

"Nettie Shinn." Thereafter the note, trust deed, extension agreement, and interest coupons attached to the extension agreement were assigned to Crebbin, appellant, who is the owner and holder thereof. The appellees paid the...