Horn v. Citizens' Saving & Commercial Bank of Denver

• Decision Date: 09 November 1896
• Citation: 46 P. 838,8 Colo.App. 535
• Parties: HORN v. CITIZENS' SAVINGS & COMMERCIAL BANK OF DENVER.
• Court: Colorado Court of Appeals

46 P. 838

8 Colo.App. 535

HORN v. CITIZENS' SAVINGS & COMMERCIAL BANK OF DENVER.

Court of Appeals of Colorado

November 9, 1896

Appeal from district court, Arapahoe county.

Action by Simon T. Horn against Wallace Bruce and the Citizens' Savings & Commercial Bank of Denver, intervener. From a judgment in favor of intervener, plaintiff appeals. Modified.

Simon T. Horn, in pro. per.

R.H Gilmore and W.W. Anderson, for appellee.

REED P.J.

On August 21, 1894, appellant brought suit against Wallace Bruce to obtain possession of cows, horses, milk wagons, farming machinery, and utensils, dairy appliances, etc., constituting the property of the "Bruce Dairy," of the alleged value of $5,000. Plaintiff claimed title to the property by purchase from Christiana Bruce, July 9, 1894. The defendant claimed title by a chattel mortgage, alleging, in his answer default, foreclosure, and purchase at foreclosure sale. The Bruce mortgage was a second mortgage, and was so expressed in it, and was subject to the prior mortgage of F.W. Reed & Co. executed by Christiana Bruce, for $850, with interest for a given time at 3 per cent. a month, and afterwards, until maturity, at 5 per cent. a month. The note secured was by Reed & Co. sold and assigned, and became the property of the appellee. On February 13, 1895, appellee having obtained leave, filed its petition of intervention in the suit of appellant against Bruce. The following appears of record in the judgment order of the court: "And it further appearing that, by consent, in open court, no evidence should be required on the part of the intervener to establish the facts alleged in its petition, because the same had theretofore been determined by the verdict of the jury and judgment thereon, in the case of George Bruce et al. v. Frank W. Reed et al., heretofore pending in this same court, in the same division thereof." A trial was had to a jury, resulting in the following verdict: "We, the jury, find the issues herein joined for the plaintiff, and assess his damages at the sum of eight hundred dollars, and that he is entitled to the possession of the property in controversy." The court required the plaintiff to remit the damages found in excess of $255, which was done by consent of the plaintiff. Motion for new trial was overruled, and on March 12, 1895, judgment was entered in favor of appellant, against Bruce, as follows: "It is ordered, adjudged, and decreed that the said plaintiff have and retain the possession of the goods and chattels in controversy, and have and recover from said defendant the sum of $255, and his costs incurred in this action;" and the following order: "And let the judgment for intervention for the sum of twelve hundred and twenty-six and 25-100 dollars be recorded in the judgment book; and let said intervener have a lien upon said property for said amount." And, on the same date, the following judgment was entered of record: "Wherefore, by virtue of the law, and by reason of the premises aforesaid, it is ordered, adjudged, and decreed that said intervener have and recover the sum of $1,226.25, together with its costs, from the plaintiff herein, on account of the lien heretofore established against the property here in controversy by the intervener herein, and that it may have a lien on and against said property thereof, which said lien shall be discharged on the payment of the sum of said $1,225.25, together with the costs of said suit." Plaintiff prayed an appeal, and perfected it by filing an appeal bond on March 26, 1895. The above proceedings were had at the January term, 1895, of the district court. On the 29th day of April, of the April term, 1895, application was made ex parte to the judge at chambers to correct the judgment of March 12th. A form of order and entry required were presented and signed by the judge; but fearing the proceeding was irregular, being ex parte and without notice, a notice was served, and on May 3d the following motion was filed: "Now comes the intervener, and moves the court that a nunc pro tunc order be entered by the court, correcting the judgment entry filed March 12, 1895, in this action, so that the same will correspond with the facts, and the findings and decision of the court, in the following respects, viz. so that it will appear therein that the intervener had, before said entry of judgment, taken possession of the property described in the complaint, and that the said intervener had the right of possession and of property in the said chattels, as provided under the chattel mortgage described in the petition of intervention, and that the plaintiff might redeem the said property by paying the intervener $1,226.25, interest and costs of suit." On May 13, 1895, the court sustained the motion to correct the judgment entry of March 12th, and made the following order and judgment entry: "And now, to wit, on this 13th day of May, A.D.1895, the same being one of the regular days of the April term of said court, this cause coming on to be heard on the motion of the intervener to correct the judgment entry as made herein on the 12th day of March, A.D.1895, so as to have the same conform to the judgment as pronounced by the court, *** and it appearing to the court that the said judgment entry heretofore made herein as aforesaid was not correct, was not in accordance with the findings, and did not correctly set out the judgment as pronounced by the court in said cause, it is therefore ordered that the said judgment entry be corrected and entered nunc pro tunc as of the date of March 12, A.D.1895, so as to read according to the judgment...