Littlejohn v. Grand International Brotherhood of Locomotive Engineers and all Members Thereof, 12826.

• Decision Date: 20 February 1933
• Docket Number: 12826.
• Citation: 20 P.2d 311,92 Colo. 275
• Parties: LITTLEJOHN v. GRAND INTERNATIONAL BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND ALL MEMBERS THEREOF et al.
• Court: Colorado Supreme Court

20 P.2d 311

92 Colo. 275

LITTLEJOHN v. GRAND INTERNATIONAL BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND ALL MEMBERS THEREOF et al.

No. 12826.

Supreme Court of Colorado

February 20, 1933

Rehearing Denied March 20, 1933.

In Department.

Error to District Court, Pueblo County; James A. Park, Judge.

Action by J. E. Littlejohn against the Grand International Brotherhood of Locomotive Engineers and All Members Thereof and others. Judgment of dismissal was entered, and plaintiff brings error.

Affirmed.

John T Bottom, of Denver, for plaintiff in error.

John A Martin, of Pueblo, for defendants in error.

BURKE Justice.

These parties appeared in the same order in the trial court, and are hereinafter referred to as plaintiff and defendants respectively.

Plaintiff sought an injunction to relieve against an unlawful conspiracy to defraud him of 'seniority rights' in railway employment, to which he claimed he was entitled, and in which conspiracy he alleged defendants had thus far successfully engaged, and for compensatory and exemplary damages and body execution. Demurrers to his complaint raising the six and three year statutes of limitation, were sustained, and demurrers for want of facts and nonjoinder of parties overruled, and judgment of dismissal was entered. To review that judgment this writ is prosecuted.

Plaintiff's cause of action arose some fifteen years, certainly seven years, Before suit. From the time the action was started below until the abstract was filed here another seven years elapsed. His grievance, if he has one, is now almost twenty-five years old. During all this time he has had the affirmative, and most of the delays are chargeable to him. It is therefore apparent that no presumptions, not mandatory should be indulged to relieve him from the bar of 'staleness,' if that question is properly raised. It was first sustained against his complaint almost seven years ago, and finally sustained against that complaint, as repeatedly amended, almost three years ago.

One of the questions to which counsel devote many pages of their briefs is whether this is a law action for damages with a prayer for injunction as an incident, or an equity action for injunction with a prayer for damages as an incident. In so far as classification is here necessary, it is probably the former. It is based upon fraud. In such a case, where courts of law afford relief, the jurisdiction is concurrent. 21 C. J. p. 107, § 83.

Here plaintiff's damages are measurable and had accrued, he alleges, in the sum of $23,000. But he also demanded exemplary damages in the sum of $25,000, and exemplary damages are not recoverable in equity. 17 C. J. § 268, p. 971. The same is true as to body execution. Section 5964, p. 1576, C. L. 1921 (section 3024, p. 818, R. S. 1908). True, the prayer is not part of the complaint, but it may be resorted to in aid of interpretation. Green v. Davis, 67 Colo. 52, 56, 185 P. 369.

Plaintiff was a member of the Brotherhood of Locomotive Firemen and Enginemen, and claimed certain rights under the laws and rules of the Brotherhood of Locomotive Engineers. After pleading these and his efforts, under the rules of the brotherhoods, to secure relief, in which efforts he says he was misled, delayed, deceived, and so prevented from seeking legal advice by false and fraudulent representations made to him in furtherance of the alleged conspiracy, he charges that on a given date he discovered 'that each and every of the said representations, so made by the defendants and relied upon by him were falsely and fraudulently made, in furtherance of the common purpose and conspiracy, theretofore entered into between the defendants, but unknown to ...