Doll v. Stewart

• Decision Date: 06 October 1902
• Parties: DOLL v. STEWART.
• Court: Colorado Supreme Court

70 P. 326

30 Colo. 320

DOLL v. STEWART.

Supreme Court of Colorado

October 6, 1902

Appeal from district court, Eagle county.

Action by Frank Doll against Jack Stewart to recover lands. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Chas. K. Phillipps, for appellant.

L. R Thomas and T. A. Dickson, for appellee.

STEELE J.

Suit was brought by the appellant (plaintiff below) to recover the possession of certain lands claimed by him, and which he alleges the defendant, without right or title, did enter and oust and eject him from, and for damages in the sum of $1,500, and for the rents and profits of said land while he has been excluded therefrom. The defendant, in his answer admitted that the plaintiff had purchased the property from R. M. Southwick on the 10th of October, 1897, and that the patent of the United States had issued to said Southwick for said lands on the 10th of April, and was duly recorded on the 1st of July, 1897. He denies that he did enter into or upon said lands, or any part thereof, and oust or eject the plaintiff therefrom; denies that he has withheld or still withholds the pssession of said lands from the plaintiff; and for a cross-complaint and counterclaim alleges that in November, 1896, said Southwick made final proof, and duly entered and paid for said land in the United States land office at Glenwood Springs; and, further, that in the month of January, 1897, he (the defendant) made and entered into a contract with the said Southwick to purchase the said lands for the sum of $500, whereby the said Southwick sold the said lands to him for the said sum, and thereupon said defendant, under and pursuant to said contract and agreement, entered into the possession and occupancy of said lands, and has expended thereon in labor and improvements large sums of money; that the said defendant and his family have resided on said lands ever since January 1897, and defendant has been in the actual, open, and notorious possession of said lands, and has made permanent, lasting, and valuable improvements thereon, under and pursuant to said contract; that the plaintiff well knew all of said facts at the time and long prior to his pretended purchase of said lands from said Southwick; that prior to the 10th of October, 1897, the said defendant demanded from said Southwick a deed conveying said lands to him, but that said Southwick failed and refused to make said deed; that the said plaintiff conspired and confederated with the said Southwick to cheat and defraud the defendant out of his rights in said premises, and to deprive him thereof, and did procure from said Southwick a conveyance of said lands, but took said deed subject to the rights and equitable title of the defendant; and praying that the equitable title to the land aforesaid be adjudged and decreed to be in the defendant, and that he is entitled to a conveyance of the legal title now standing in the name of the plaintiff, and that the plaintiff be decreed to make, execute, and deliver to the defendant a good and sufficient deed of said premises. The replication of the plaintiff denies the allegations of new matter, and each and every allegation contained in the cross-complaint and counterclaim. On April 4, 1899, the cause was tried by the court, and judgment was rendered in favor of the defendant. On the 25th of April, 1899, plaintiff paid all costs, and moved for a new trial under section 272 of the Code. On June 5, 1899, the motion for new trial was granted. On July 22, 1899, plaintiff filed his motion for change of venue, supported by affidavits. Counter affidavits were filed on the 17th of October, 1899. The motion for change of venue was heard before the judge of the district court at chambers in Leadville, and was denied. On April 9, 1900, the cause was set for trial for the 4th of June, 1900. On the 4th of June, 1900, motion for a continuance, supported by affidavits, was made by the plaintiff, and upon said day the motion was denied, and the cause was tried to the court, a jury being expressly waived by both the said parties, and the court rendered judgment in favor of the defendant. To the refusal of the court to change the venue of the cause, to the order of the court overruling the motion for a continuance, and to the judgment of the court, the plaintiff excepted.

The cause is brought here upon appeal by the plaintiff, and he assigns as error the overruling of the motion for change of venue, the overruling of the motion for continuance, and the rendering of judgment in favor of the defendant because it is against the law and against the evidence, and should have been rendered in favor of the plaintiff. The motion for change of venue is based upon the grounds: First, that the plaintiff fears he will not have and receive a fair trial in the district court of Eagle county, on account of the prejudice of the judge of said court; second, because the defendant has an undue influence over the minds of the inhabitants of said Eagle county; and, third, because the inhabitants of said Eagle county are prejudiced against the plaintiff, so that he cannot and does not expect a fair trial of this case within said Eagle county. This motion was supported by the affidavit of the plaintiff, in which he sets forth that the judge of said court is prejudiced against him for the reason that the cause had already been once tried and determined on the merits before the judge of said court without a jury, that upon such trial a direct and very positive conflict of testimony occurred and that, notwithstanding the sworn testimony of the plaintiff, the judge of said court adopted the statements of witnesses who contradicted the plaintiff in the essential and vital facts, and found against the plaintiff, and rendered judgment for the defendant; and that affiant is therefore compelled to believe and does believe that the judge of said court has no confidence in the credibility of plaintiff, and that upon a second trial of this case such lack of confidence must influence the mind of said judge to the material prejudice and injury of plaintiff. In support of his statement that the said defendant has an undue influence over the minds of the inhabitants of said Eagle county, the plaintiff, in his affidavit, alleged, among other things, that the defendant has been in possession of the lands in controversy for a great number of years; that he has made the same a home for himself and his family during such period, and has obstinately refused to surrender possession thereof, and that public sentiment, overlooking the right of the matter, has been very strongly exhibited in favor of the defendant, and has been studiously cultivated by the defendant as an 'old timer' in said county, and in many other ingenious ways, by reason whereof the inhabitants of said county have placed great faith in the right of the said defendant to have and maintain possession of said lands; that the mere continuous residence of the defendant upon said lands, and the raising of his family of several...