Lindsey v. Carlton

• Decision Date: 06 July 1908
• Citation: 44 Colo. 42,96 P. 997
• Parties: LINDSEY, County Judge, v. CARLTON.
• Court: Colorado Supreme Court

96 P. 997

44 Colo. 42

LINDSEY, County Judge, v. CARLTON.

Supreme Court of Colorado

July 6, 1908

Error to District Court, City and County of Denver; John I Mullins, Judge.

Petition by Frank Carlton for writ of mandamus against Ben B. Lindsey as county judge. From a judgment granting an alternative writ, respondent brings error. Reversed and remanded, with directions to dismiss the proceeding.

John A. Deweese and C. W. Coykendall, for plaintiff in error.

S. S Abbott and E. N. Burdick, for defendant in error.

MAXWELL J.

Defendant in error here (plaintiff below) filed his verified petition in the court below, praying for a writ of mandamus to compel the county court to comply with a decree rendered by the district court in the certiorari proceedings in Carlton v. Carlton, 96 P. 995. The petition set forth substantially the same facts as those set forth in the petition for a writ of certiorari in Carlton v. Carlton, and also alleged the rendition of the judgment and decree in that proceeding, and the failure and refusal of the county court to obey the judgment of the district court in the certiorari proceeding. A copy of this latter decree was attached to the petition and made a part thereof by reference. This petition was filed before and adjudicated by a judge of the district court other than the judge who adjudicated the certiorari proceedings. Pursuant to the prayer of the petition, an alternative writ of mandamus was issued and served upon the judge of the county court, which is in words and figures as follows, to wit:

'The People of the State of Colorado, to Ben B. Lindsey, Judge of the County Court of the City and County of Denver, and said County Court--Greeting: Whereas, it manifestly appears by the affidavit and petition of Frank Carlton, the plaintiff herein and the party beneficially interested herein, and it appearing from said petition, supported by the affidavit of said Frank Carlton: (1) That the county court is an inferior tribunal in respect to this district court. (2) That the plaintiff has no plain, speedy, or adequate remedy in the ordinary course of law. (3) That on the 30th day of January, A. D. 1904, the said county court rendered a decree in divorce, in which said decree it awarded alimony and attorney's fees in the sum of $2,200, which same was in excess of the jurisdiction of said county court. (4) That on, to wit, the 5th day of May, A. D. 1904, the said decree was held to be null and void by this court in so far as said money judgment was concerned. (5) It is alleged and represented, and appears from said petition, that the said judgment is wholly illegal and void, and that all steps taken therein are illegal and void and of no effect. (6) It is further represented to the court, and it appears from the said petition, that a receiver was appointed after judgment in aid of execution in the said county court, and that said receiver was appointed wholly without notice to any of the parties in interest, and that the same wsa null and void and of no effect. (7) It further appearing from said petition that a writ of no exeat was issued, and the plaintiff in this writ required to give bond in the sum of $2,000 to pay the said judgment of court and not to leave the state, and it appears from the said petition that the writ of ne exeat and the bond required thereunder were null and void and of no effect. (8) It appears from the said petition and is so represented that a writ of injunction issued in the said county court, enjoining the defendant from committing certain acts. (9) It appears from the said petition that the said Ben B. Lindsey is persisting in retaining the said receiver and in holding jurisdiction of said cause, notwithstanding the time has expired in which said judgment was rendered, and that the said judgment has been decreed to be null and void. And it further appearing to the court that there is no plain, speedy, or adequate remedy at law: Therefore we do command you that you do, immediately after the receipt of this writ, remove the said receiver heretofore appointed by you, to wit, the said Walter S. Kent. (2) And that you do dissolve and discharge the writ of ne exeat heretofore issued by you, and discharge the plaintiff herein from the bond given by him in response to said writ. (3) That you do discharge the writ of injunction heretofore issued by you in said cause. (4) That you dismiss the said proceeding in your court and cease forever in taking jurisdiction of the same, and that you show cause before this court at 2 o'clock p. m., on the 25th day of May, A. D. 1904, why you have not done so. Witness the Honorable John I. Mullins, judge of the district court of the city and county of Denver, and the seal of said court, this 23d day of May, A. D. 1904. Otis B. Spencer, Clerk, by J. S. Brown, Deputy Clerk.'

The respondent county judge, by motion and demurrer, questioned the jurisdiction of the court to issue the writ and the sufficiency of the allegations of the alternative writ to entitle petitioner to the relief prayed. The...