Joralmon v. McPhee

• Decision Date: 02 December 1901
• Citation: 29 Colo. 135,66 P. 882
• Parties: JORALMON et al. v. McPHEE et al.
• Court: Colorado Supreme Court

66 P. 882

29 Colo. 135

JORALMON et al. v. McPHEE et al.

Supreme Court of Colorado

December 2, 1901

Appeal from district court, Arapahoe county.

Action by H. M. Joralmon, as trustee, and others, against Charles D McPhee and others. Judgment for defendants, and plaintiffs appeal. Application for leave to file a supplemental transcript of the record. Granted.

T. J O'Donnell, Milton Smith, Benedict & Phelps, and K. D O'Donnell, for appellants.

Hartzell & Steele, D. V. Burns, and Whitford Whitford & May, for appellees.

PER CURIAM.

Application for leave to file a supplemental transcript of the record. It appears that, after the appeal from the final judgment of the district court of Arapahoe county in the pending cause was perfected, the latter tribunal, under the provisions of section 163, Mills' Ann. Code, appointed a receiver to collect the rents and preserve the property which is the subject of the litigation pending the appeal. After the cause was at issue here, the district court allowed the receiver compensation for his services, and constituted the award therefor a first and prior lien upon the property in question. This is the order which appellants ask to have reviewed in connection with a review of the final judgment. Counsel for the receiver, in whose favor it was made, oppose the application upon the grounds that thereby the attempt is made to have this court review a judgment independent of and different from the one from which the appeal was taken, and that it comes too late.

1. The order thus sought to be brought up is not foreign to the cause in which final judgment was rendered. By express provision of our Code, and under the decisions of this court it may properly be reviewed in connection with a review of the final judgment itself. Mills' Ann. Code, § 398; Schmidt v. Dreyer, 21 Colo. 100, 39 P. 1086.

2. In Martin v. Force, 3 Colo. 199, it was held that, after submission and judgment pronounced, it was too late to apply for leave to amend the record, and an Illinois case was cited, holding that a suggestion of diminution, to enable the party to bring up a more perfect transcript of the record, after the term at which the cause was submitted, will not be entertained. In O'Haire v. Burns, 25 Colo. 158, 53 P. 326, upon an analogous question, it was said by Mr Justice Gabbert, 'Where the issues in a cause are once formulated, an application by either party for leave to amend...