Green v. Taney

• Decision Date: 14 March 1884
• Citation: 3 P. 423,7 Colo. 278
• Court: Colorado Supreme Court
• Parties: GREEN, Adm'x, v. TANEY.

3 P. 423

7 Colo. 278

GREEN, Adm'x, v. TANEY.

Supreme Court of Colorado

March 14, 1884

An objection to the misjoinder of causes of action, in a complaint, must be taken by demurrer, and must be specifically stated.

Pleading over, after demurrer has been made, waives the right to be heard on the question of the demurrer.

Parties have the right to submit to the jury, by agreement, legal or equitable questions of fact. When they have done so they are estopped from complaining that it was error for the jury to consider those questions.

The weight of evidence does not consist in its volume.

Juries have a large discretion in judging of the credibility of evidence, and a court will not interfere, unless it appears from the record that they acted unreasonably.

Appeal from district court of Arapahoe county.

Brown & Putnam and Markham & Patterson, for appellant.

L C. Rockwell, for appellee.

HELM J.

Three questions are presented by the record, and argued by counsel named in inverse order; they are: (1) That the cross-complaint of Taney, who was defendant below, contained causes of action which could not be joined; (2) that two issues, one legal and the other equitable, were submitted to the jury, and that so trying an equitable question was error; and (3) that the verdict of the jury was contrary to the weight of evidence.

It is questionable if there is anything in appellant's first objection; but we will not pass upon the subject for the reason that she is in no position to be heard thereon. The objection made, if well taken, would constitute a ground of demurrer, to be specifically stated. A demurrer was filed to the cross-complaint, but no such ground was averred therein. Had appellant's intestate, Michael Green, who was plaintiff below, therefore, preserved an exception to the ruling upon the demurrer, which he did not, this objection would not now be available. Besides, had the demurrer properly presented the subject, and had an exception to the ruling been saved, the right to be heard thereon was waived by afterwards pleading over.

Appellant is in no better position as to her second objection above stated. We are not called upon to say whether either of the issues presented to the jury was equitable; nor whether, if the finding upon either lays the foundation for an equitable judgment, the question of fact connected therewith were not such as, under our practice, might by the court be submitted to a jury. The record contains the following declaration: 'And therefore, all parties consenting thereto, it is ordered by the court that a jury come, to whom shall be submitted the following issues,' etc., naming them. So it appears that Green expressly consented to the submission of both questions to the jury. By his so doing, appellant is estopped from now challenging the regularity of the proceedings. Parties have the undoubted right to submit by agreement any issue or issues of fact, equitable or legal, to a jury for determination, and, having done so, they will not afterwards be heard to complain.

The third and last objection of appellant rests entirely upon the weight to be given the evidence. Bearing directly or indirectly upon the vital question of fact in the case, Green offered the testimony of 10 witnesses, including himself Taney but one, and that one was himself. There at first appears to be some ground, therefore, for the surprise of appellant concerning the verdict. The evidence is voluminous and we cannot discuss it in detail; but will proceed to state as briefly as we may our reasons for sustaining the action of both court and jury. Green was an officer in the employ of the Denver & Rio Grande Railway Company; it was his business to superintend the operating of construction trains, and, to some extent, the track- laying, where the road was in process of...