Ducey v. Patterson

• Decision Date: 04 June 1906
• Citation: 86 P. 109,37 Colo. 216
• Parties: DUCEY et al. v. PATTERSON.
• Court: Colorado Supreme Court

86 P. 109

37 Colo. 216

DUCEY et al. v. PATTERSON.

Supreme Court of Colorado

June 4, 1906

Error to District Court, Arapahoe County; Geo. W. Allen, Judge.

Action by Thomas M. Patterson against Patrick Ducey, individually and as administrator of Allan Ducey, deceased, and others. From a judgment in favor of plaintiff, defendants bring error. Writ dismissed, and judgment declared paid.

Charles J. Hughes, Jr., for plaintiffs in error Patrick Ducey and others.

Tyson S. Dines and Mr. J. G. McMurray, for plaintiff in error estate of W. S. Stratton, deceased.

Richardson & Hawkins, for defendant in error.

MAXWELL J.

Material parts of the judgment in this case are as follows: 'It is therefore by the court ordered, adjudged, and decreed that the plaintiff, Thomas M. Patterson, recover of the defendants, Patrick Ducey, Ellen G. Ducey, and Winfield S Stratton the sum of $2,000 and all the costs in the cause in this behalf expended, and it is ordered that execution issue as provided by law, for the collection of said amount. And it is further ordered, adjudged, and decreed that the defendants, Patrick Ducey and Ellen G. Ducey, transfer and deliver to the plaintiff within 30 days from the date of this decree, 7,500 shares of the said 15,000 shares of the capital stock of the Portland Gold Mining Company together with an assignment of all dividends declared on said 7,500 shares of stock, since the 8th day of January, A. D. 1897, that being the date of the injunction in this cause.' The judgment was rendered July 3, 1899. July 9, 1899 an act of the General Assembly entitled, 'An act to allow the release of joint debtors' went into effect. Sess. Laws 1899, p. 239, c. 108; 3 Mills' Ann. St. Rev. Supp. § 2528a. The first section is as follows: 'A creditor of joint debtors may release one or more of such debtors, and such release shall operate as a full discharge of such debtor or debtors so released, but such release shall not release or discharge or affect the liability of the remaining debtor or debtors. Such release shall be taken and held to be a payment in the indebtedness of the full proportionate share of the debtor or debtors so released.'

August 10, 1905, there was filed in this court the following (after the title of the cause): 'In the above-styled cause it is hereby stipulated and agreed that a settlement of all existing controversies between the defendant in error, Thomas M. Patterson, and the administrators, representatives, and heirs of Patrick Ducey, deceased, and Ellen G. Ducey, deceased, has this day been made, and that the judgment rendered by the district court of Arapahoe county, on the 3d day of July, 1899, which judgment decreed that the said Patterson recover of said Patrick Ducey and Ellen G. Ducey and one Winfield S. Stratton, the sum of $2,000 and costs of action, and also decreed that the said Patterson was the equitable owner of 7,500 shares of the capital stock of the Portland Gold Mining Company, and ordered that said stock be delivered to the said Patterson together with an assignment of all dividends declared on said stock since the 8th of January, 1897; and to reverse which judgment the writ of error in the above-styled cause was sued out, has this day been satisfied, and is hereby satisfied and discharged so far as it was rendered against the said Duceys. It is further stipulated that the writ of error, so far as the same was sued out by or on behalf of the said Duceys, may be and the same is hereby dismissed, neither party hereto to recover any costs against the other, and that the court may make such entries or orders of record as are necessary to carry into effect this judgment. The defendant in error, by the signing of this stipulation does not waive, relinquish, or cancel the said judgment so far as it is against the said Winfield S. Stratton, but only acknowledged satisfaction of said judgment so far as the said Duceys are concerned. This July 10th, 1905. Charles J. Hughes, Jr., attorney for the administrators and heirs of Patrick Ducey and Ellen G. Ducey. Richardson & Hawkins, attorneys for defendant in error.

It will be observed that the foregoing act went into effect six days after the rendition of the judgment herein. The executors of the last will and testament of Winfield S. Stratton, deceased, who have been substituted for said Stratton, move to dismiss the writ of error herein and to declare the judgment of the court below fully paid, performed and satisfied as to the estate of Stratton, by reason of the stipulation filed herein by defendant in error, above set forth. Defendant in error joins in the motion to dismiss the writ, but denies the authority of the court be satisfy the judgment, upon the grounds: (1) That the court is without jurisdiction to make such order; (2) that the stipulation and settlement between the Duceys and defendant in error does not release the Stratton estate, under the common law; (3) that the release is within the purview of the statute above quoted, and its force and effect controlled thereby.

1. The first contention is disposed of by Atkinson v. Tabor et al., 7 Colo. 197, 3 P. 65, wherein appellees moved to dismiss the appeal upon the ground, inter alia, that appellants since taking the appeal, availed themselves of a large portion of the money deposited as purchase money of the mines involved in the litigation, and thus waived their right to have the judgment appealed from reviewed on appeal. The court held: 'Matters may occur subsequent to judgment which operate to waive the right of a party to have the judgment reviewed on appeal, or upon writ of error. Wheh such matters appear of record, the objection is properly raised by a motion to dismiss; but when they do not so appear, the objection must be raised by a plea in bar of the proceedings in error. Powell on Appellate Proceedings, 121, § 12a, and authorities cited. We entertain no doubt of the general proposition, that it is inconsistent with the principles of justice, and the rules of law, to permit a party, who has voluntarily taken advantage of a judgment rendered at nisi prius, to afterwards prosecute proceedings to reverse it. Neither have we any doubt of the jurisdiction of this court, when such conduct of a litigant before it is properly alleged, and the matter does not appear of record, to institute the necessary inquiry whether the matters alleged to constitute the waiver have in fact occurred. To sustain the appellant's objection and hold that we are without power to institute such inquiry, is equivalent to saying that the Supreme Court of Colorado is without power to determine a question pertaining to its own jurisdiction.' The stipulation above quoted being a matter of record, this case falls within the rule above announced.

2. The judgment against Stratton was upon the theory, and it is so conceded, that he was a joint tort-feasor with the Duceys his liability being found upon his joining with the Duceys in the conception and consummation of a scheme to defraud defendant in error out of $2,000 and 7,500 shares of the capital stock of the Portland Gold Mining Company. That the release or discharge of one or more joint tort-feasors, executed in satisfaction of the tort, is a release of all, has been held by this court in Bowman v. Davis, 13 Dolo. 297, 22 P. 507, and D. & R. G. R. R. Co. v. Sullivan, 21 Colo. 302, 41 P. 501. Both cases quote approvingly the doctrine announced in Cooley on Torts (2d Ed.) p. 160: 'It is to be observed in respect to the point above considered, where the bar accrues in favor of some of the wrongdoers by reason of what has been received from or done in respect to one or more others, that the bar arises not from any particular form that the proceeding assumes, but from the fact that the injured party has actually received satisfaction, or what in law is deemed the equivalent. Therefore, if he accepts the satisfaction voluntarily made by one, that is a bar as to all.' Tompkins v. Clay St. R. R. Co., 66 Cal. 163, 4 P. 1165; Seither v. Phil. Traction Co., 125 Pa. 397, 17 A. 338, 4 L.R.A. 54, 11 Am.St.Rep. 905; Chapin v. C. & E. I. R. R. Co., 18 Ill.App. 47; Brown v. City of Cambridge, 3 Allen (Mass.) 474; Leddy v. Barney, 139 Mass. 394, 2 N.E. 107; Goss v. Ellison, 136 Mass. 503; Donaldson v. Carmichael, 102 Ga. 40, 29 S.E. 135. In Turner v. Hitchcock, 20 Iowa 310, Mr. Justice Dillon writing the opinion of the court says: 'It is also an undisputed principle of the common law that as a general rule, the release of one joint wrongdoer releases all. The rule and the reason for it are thus stated in a work of high authority: 'If divers commit a trespass, though this be joint or several, at the election of him to whom the wrong is done, yet if he releases to one of them, all are discharged, because his own deed shall be taken most strongly against himself.' Also (which seems to be the better reason) such release is a satisfaction in law which is equal to a satisfaction in fact. Bacon's Abr. tit. 'Release' B. * * * 'The reason of the rule' that the release of one is the release of all 'seems,' says Bronson, J., with his accustomed clearness and force (Bronson v. Fitzhugh, 1 Hill [N.Y.] 185, supra), 'to be that the release being taken most strongly against the releasor is conclusive evidence that he has been satisfied for the wrong; and after satisfaction, although it moved from only one of the tort-feasors, no foundation remains for an action against any one. A sufficient atonement having been made for the trespass, the whole matter is at an end. It is as though the wrong had never...