Harvey v. Travelers' Ins. Co.

• Decision Date: 19 April 1893
• Citation: 32 P. 935,18 Colo. 354
• Parties: HARVEY et al. v. TRAVELERS' INS. CO. et al.
• Court: Colorado Supreme Court

32 P. 935

18 Colo. 354

HARVEY et al. v. TRAVELERS' INS. CO. et al.

Supreme Court of Colorado

April 19, 1893

Appeal from district court, Arapahoe county.

Suit by J. K. Harvey and others against the Travelers' Insurance Company and others to cancel certain conveyances and judgments, and for other relief. From the decree entered plaintiffs appealed. Defendants now move to dismiss the appeal. Motion granted.

The other facts fully appear in the following statement by ELLIOTT, J.:

Motion of appellees to dismiss appeal. Appellants were plaintiffs below. The relief sought in the district court, was, in substance, as follows: (1) To impeach, set aside, and hold for naught certain judgments and decrees rendered by another court of record; (2) to vacate, set aside, and declare null and void certain sales and conveyances of real property; (3) to obtain a decree for the foreclosure of a certain mortgage and for the sale of certain real property therein described for the purpose of paying to plaintiffs certain bonds secured by said mortgage; (4) for a judgment against certain of the defendants for any balance remaining due and unpaid to plaintiffs, in case the proceeds of the mortgaged property should not be sufficient to pay them in full, and for other and further relief, and for costs.

Syllabus by the Court

1. Under the statute governing appeals to this court, an appeal does not lie on the ground that the judgment relates to a freehold, unless the right or title to the freehold is the direct subject of the action, nor unless the judgment is conclusive of such right or title until reversed. The statute does not allow a party to appeal from a judgment in his own favor, but he may have a judgment in his favor reviewed by writ of error. If a cause is not appealable by the terms of the statute, the court is without jurisdiction to review the judgment, and joinder in error does not cure such want of jurisdiction.

2. Wherever the construction of a statute has been repeatedly given in the same way, or where a construction has been given and acquiesced in for a number of years, it would be manifestly improper for a court to disturb questions thus settled.

3. When judicial decisions are wrong in principle, and subversive of substantial rights, it may be necessary to review and overrule them; but such necessity can seldom arise where only some question of practice or mode of procedure is involved.

4. When the legislature re-enacts a statute which has theretofore received a settled judicial construction, the legislative intent undoubtedly is that such former construction will be adhered to.

J. P. Brock way, for appellants.

Charles H. Toll, Wolcott & Vaile, W. M. Maguire, and H. C. Charpiot for appellees.

ELLIOTT, J., (after stating the facts.)

In the district court, plaintiffs obtained judgment substantially as sought by their complaint. Upon a rehearing, however, that court modified its decree, denying the money judgment asked by plaintiffs in case the proceeds of the mortgaged property should not be sufficient to pay their claims in full. In other respects the judgment was altogether favorable to plaintiffs. This is apparent from the nisi prius record, as well as from the fact that, in assigning error upon this appeal, appellants only complain of the action of the court refusing to allow any money judgment in their favor. The statute governing appeals to this court, except as to amount, is substantially the same now as it was in territorial times, and as it has been ever since, with brief interruptions. It reads as follows: 'Appeals to the supreme court from the district, county, and superior courts shall be allowed in all cases where the judgment or decree appealed from be final, and shall amount, exclusive of costs, to the sum of one hundred dollars, or relate to a franchise or freehold.' See Rev. St. 1868, p. 513; Laws 1879, p. 226; Code 1887, § 388; Court of Appeals Act 1891, p. 118. See, also, Code 1877, c. 36, and Sess. Laws 1885, p. 350.

1. The statute above quoted was borrowed from Illinois. Before its adoption in Colorado it had received a judicial construction in Illinois, to the effect that an appeal does not lie on the ground that the judgment relates to a freehold, unless the right or title to the freehold is the direct subject of the action, or unless the judgment is conclusive of such right or title until reversed; and also that the statute does not allow a party to appeal from a judgment in his own favor. Rose v. Choteau, 11 Ill. 170; Addix v. Fahnestock, 15 Ill. 448; Carr v. Miner, 40 Ill. 33. This court has followed the Illinois decisions, as above stated, and has also held that the right of appeal is governed by the statute; that, if a cause is not appealable by the terms of the statute, the court is without jurisdiction to review the judgment; and that joinder in error does not cure such want of jurisdiction. Molandin v. Railroad Co., 3 Colo. 173; Peabody v. Thatcher, 3 Colo. 275; Bartels v. Hoey, 3 Colo. 279; Bernard v. Boggs, 4 Colo. 73; Board v. Sloan, 4 Colo. 128; Thorne v. Ornauer, 6 Colo. 39; Hall v. Mining Co., 6 Colo. 81; Vallette v. Smelting Co., 11 Colo. 204, 17 P. 509; Crane v. Farmer, 14 Colo. 294, 23 P. 455; Meyer v. Brophy, 15 Colo. 572, 25 P. 1090; Sons of America, etc., Ass'n v. City of Denver, 15 Colo. 592, 25 P. 1091; People v. Richmond, 16 Colo. 274, 26 P. 929.

2. Appellants' counsel virtually admits that the decisions in the foregoing cases, if adhered to, will prevent his clients from maintaining this appeal; nevertheless, he earnestly and forcibly insists...