Hughes v. McCoy

• Decision Date: 26 October 1888
• Citation: 11 Colo. 591,19 P. 674
• Parties: HUGHES v. McCOY.
• Court: Colorado Supreme Court

19 P. 674

11 Colo. 591

HUGHES v. McCOY.

Supreme Court of Colorado

October 26, 1888

Commissioners' decision. Error to district court, Arapahoe county.

The plaintiff here was plaintiff below, and filed his complaint March 7, 1884, alleging that the said defendant was judge of the county court of Clear Creek county from January, 1877, to January, 1881, and during all that time was ex officio clerk of said court, and accordingly acted. That on September 15, 1877, one Beighley duly recovered a judgment against one Cummings before a justice of the peace of said county of Clear Creek for the sum of $206.55; from which Cummings appealed to said county court, and duly filed his bond therefor with the said justice. On December 9, 1878, the said Cummings having failed to file a transcript, and have said case docketed in the said county court, said Beighley advanced the docket fee in said county court, and caused the said transcript of said case from the said justice's docket to be filed, and the case to be entered on the docket of the said county court; whereupon the said county court entered a rule against the said Cummings that he refund the said docket fee so advanced on or before December 16, 1878. That notice of the rule was duly given to said Cummings. That said Cummings failed to comply therewith; whereupon the said appeal was duly and regularly dismissed by said court. After which procedendo duly issued in the case. Thereafter the said Beighley assigned and transferred said judgment for value to to said plaintiff, which said assignment was in writing, and was entered on the docket of the said justice. That said Cummings, as well as his counsel, had actual knowledge of said assignment. That afterwards, on December 28, 1878, an execution was duly issued by the said justice upon said judgment and duly delivered to the constable, and was afterwards by him returned unsatisfied, for the want of property upon which to levy. That afterwards, on January 4 1879, the said plaintiff commenced an action in the district court of said county of Clear Creek upon the said appeal-bond of the said Cummings, and upon January 6, 1879, the obligors thereon were duly served with summons therein. That at that time there was no defense to the said action. That said obligors, their counsel, and the said defendant, county judge aforesaid, contriving, colluding, consorting, and conspiring how they could make and set up a defense in said action in the district court, combined and confederated and intending to cheat and injure the said plaintiff as assignee of the said judgment as aforesaid, did collusively, corruptly maliciously, and oppressively agree among themselves to reinstate the said case of Beighley v. Cummings in the said county court. That in pursuance of the said object the said defendant, as county judge aforesaid, on the night of January 13, 1879, after the close of the term at which the said judgment of dismissal had been entered and given, on the application of the said Cummings made and entered of record an order as follows, to-wit:

'STATE OF COLORADO, CLEAR CREEK COUNTY.

' Henry Beighley vs. Owen Cummings. (Appeal.)

'Now at this day, the above-entitled cause coming on to be heard upon the petition of the defendant, addressed to the judge of said court, at chambers, praying for the reinstating of the above-entitled cause, which was dismissed at the last term of this court by reason of the defendant's failure to comply with a rule of the court to pay the costs of the appeal, etc., and the judge at chambers, being fully advised in the premises, from affidavits filed, and after hearing arguments of counsel, etc., it is ordered that said cause be reinstated; that the order dismissing said appeal be set aside; and that the writ of procedendo issued by said county court in said cause to the justice of the peace, from which appeal was taken, be, and the same is hereby, recalled and annulled, and that said cause be reinstated upon the trial docket in all respects as if said appeal had not been dismissed. And it is further ordered that the defendant comply with the original rule against him to pay costs of appeal, and pay the costs of this proceeding. Given under my hand this 13th day of January, A. D. 1879.

'JOHN C. McCOY, Judge of County Court.'

That at said time all the said parties had actual knowledge of the transfer of said judgment to the plaintiff; that said proceedings were had, and said order made and entered without notice or knowledge to the said Beighley or the plaintiff, and without appearance by or for them, or either of them; that said defendant solicited a member of the bar of his court to appear in the said proceeding on behalf of the said Beighley, who refused so to do; that on January 17, 1879, answer was filed in said action pending in the said district court, setting up the said order, and alleging that said action was undetermined and still pending in the county court, and consequently no liability on the bond sued on; that this was the only defense set forth in said answer; that the plaintiff replied to said defense, and alleged therein the want of notice and jurisdiction of the said judge in the premises to make or enter said order; but, nevertheless, the said defense was held sufficient; that the obligors on said appeal-bond in the mean time became insolvent, so that the plaintiff is unable to recover upon said bond; that by said proceedings he was defeated in his remedy in the premises. To this complaint the defendant demurred generally, and the said demurrer was sustained, and judgment accordingly given for the defendant; and the plaintiff seeks reversal here on writ of error.

Wm. T. Hughes, for plaintiff in error.

Decker & Yonley and Wells, Macon & McNeil, for defendant in error.

STALLCUP, C., ( after stating the facts as above.)

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