Horn v. Reitler

• Decision Date: 19 December 1890
• Parties: HORN v. REITLER.
• Court: Colorado Supreme Court

25 P. 501

15 Colo. 316

HORN v. REITLER.

Supreme Court of Colorado

December 19, 1890

Appeal from district, court, Jefferson county.

Suit by appellee, Reitler, as administrator of the estate of Robert Standering, deceased, to recover certain cattle claimed by appellee, Horn, under the following written instrument 'Bailey, Colo., April 11, 1884. I hereby assign transfer, and sell to P. C. Horn twenty-five (25) head of cattle branded 'S' to secure him for his bond, given for me in my suit against J. Carrothers in justice's court, before C. M. TAYLOR. If said costs are paid by me this bill of sale shall be void. ROBERT STANDERING. W. W HOOPER.' In the district court plaintiff had judgment. The remaining facts sufficiently appear in the following opinion of the court, or will be found in connection with the former opinion, therein referred to.

Syllabus by the Court

1. After a judgment has been reversed by the supreme court upon appeal, and the cause remanded for a new trial, the trial court may permit the pleadings to be amended whenever the ends of justice will be subserved thereby.

2. An application to amend under such circumstances is addressed to the sound discretion of the trial court, and its decision thereon will not ordinarily be disturbed.

3. Error in overruling a motion for a nonsuit, when such motion is based upon the failure of evidence to establish plaintiff's cause of action, will not avail the defendant upon appeal, provided the omitted evidence be supplied at a subsequent stage of the trial.

S T. Horn and H. C. Cassidy, for appellant.

Robt. E. Foot, for appellee.

HAYT, J., ( after stating the facts as above.)

Upon the previous appeal in this case, the facts, as they then appeared upon the record, were fully set out in the statement preceding the opinion, and will not be here repeated. See Horn v. Reitler, 12 Colo. 310, 21 P. 186. Upon the evidence introduced at the first trial, the district court directed a verdict for the plaintiff. On review in this court, this action of the trial court was held to be erroneous, and the judgment for this reason reversed. It was then said that, under the pleadings and admissions at the former trial, the material issues to be determined were: 'Did Standering make a sale of the cattle to Horn with a condition of defeasance for a valuable consideration? * * * And did Horn acquire rights thereunder which had not been divested at the time of the commencement of the action?' The case having been remanded, a new trial was had in the district court at the November, A. D. 1889, term thereof, resulting again in favor of appellee, Reitler, as administrator of Standering. To reverse this judgment, the cause is again brought to this court by appeal.

The first error assigned by appellant relates to the order of the court allowing plaintiff to file an amended replication. In this amended pleading, plaintiff admits the giving of the bill of sale with the condition of defeasance as set forth in defendant's answer, and alleges, by way of discharge and avoidance thereof, that the bond mentioned in said instrument was the usual cost-bond provided by statute, and that all costs in the suit mentioned which Standering was by law required to pay had been paid by him; that he (Standering) was the plaintiff in the suit in which the bond was given, and recovered judgment therein; and that no costs were found or adjudged against him; and that Horn, with full knowledge of all these facts, fraudulently and secretly confessed judgment for certain alleged costs in other cases, not covered by the bond. Facts are also alleged connecting the purchaser of the cattle with such fraudulent acts. The amended pleading appears to have been necessary to enable the plaintiff to fully and thoroughly present upon the trial his defense to the new matter set up in the answer, and was properly allowed. See Horn v. Reitler, supra. It is not claimed that defendant was surprised at the nature of the matters pleaded therein, and, if he had shown such surprise, this would more properly have furnished a ground for a continuance than a valid objection to the allowance of the amendments. It is the policy of the Code to allow amendments to pleadings whenever the ends of justice will be subserved thereby, and it has been repeatedly held by this court that such amendments may be permitted in the discretion of the court after one trial has been concluded and a new trial ordered. Such applications are addressed to the sound discretion of the trial court, and its decision thereon will not ordinarily be disturbed.

At the last trial, plaintiff rested his case, in the first instance upon evidence of his ownership of the cattle on April 11, A. D. 1884, and defendant's refusal to surrender the same upon demand. At this point, a ...