Marriott v. Clise

• Decision Date: 24 May 1889
• Citation: 12 Colo. 561,21 P. 909
• Parties: MARRIOTT v. CLISE.
• Court: Colorado Supreme Court

21 P. 909

12 Colo. 561

MARRIOTT v. CLISE.

Supreme Court of Colorado

May 24, 1889

Commissioners' decision. Error to Arapahoe county court.

This action was commenced in the county court of Arapahoe county upon the complaint of A. B. Sullivan and Charles D. May copartners, against Fred A. Mariott, upon a promissory note dated June 30, 1882, payable to the order of Maria L Russell, for the sum of $500, due on September 30, A. D 1882, with interest thereon from date until paid, at the rate of 3 per cent. per month, and for the payment of 15 per cent on the face value of said note as attorney's fees, in case said note was not paid at maturity, to be taxed as part of the costs of the suit. It is averred that the note was duly assigned after maturity, October 29, 1883, to the plaintiffs, and a prayer for judgment for the sum of $775 and the costs of suit. Defendant, Marriott, answers, admits copartnership, admits the execution of the note, but denies that there is anything due plaintiff from defendant herein, and in addition files a counter-claim alleging that on March 1, 1883, he was the owner of the following described premises, to-wit, lot 15, block 36, in Curtis & Clark's addition to Denver. That W. H. Clise is the holder of a certain note dated April 5, 1881, secured by a trust-deed on said property given by his wife, Mary H. Marriott. That on June 30, A. D. 1882, defendant borrowed the sum of $500 from the plaintiffs, and made and executed the note set out in the complaint; and, to secure the payment of said note and interest, he executed a trust-deed on the premises, and a chattel mortgage to Maria L. Russell on his furniture. That on or about March 1, 1883, default having been made in the payment of all of said notes so secured by said trust-deed and said chattel-mortgage, plaintiff Sullivan, acting as agent for said Clise, and for said Maria L. Russell, the real owners of the said note, with intent to cheat and defraud the defendant out of the said premises, proposed to defendant that he should make and execute a warranty deed of the said premises to Clise, for the purpose of securing payment of said notes and interest thereon; agreeing that the said premises should be held in trust for the defendant, and that if said premises should be sold by either the plaintiff or said Clise, or said defendant, the price received therefor should be applied to the payment of the principal and interest of the said notes as aforesaid, the surplus if any, to be paid to, or retained by, the defendant. That said Clise should collect, the rents from said premises, and apply the same to the payment of the interest of said notes. That said Clise should not foreclose under said trust-deed given by said Mary H. Marriott, nor the plaintiff, as agent of said Maria L. Russell, nor the said Maria L. Russell, would not foreclose under the trust-deed given by the defendant, but that said warranty deed should be given to secure the payment of said notes so secured by said trust-deed and said chattel mortgage, and for no other purpose. That defendant should be considered the owner of said property. That the defendant should turn over to the plaintiff the furniture mentioned in said chattel mortgage. That, relying on the statements and representations as aforesaid, plaintiff executed and delivered his warranty deed March 1, 1883, to said Clise, and also on the same day delivered and turned over to the plaintiff the furniture mentioned in the chattel mortgage. Plaintiff pretends that he had sold the said furniture for the sum of $100, when in fact the said furniture was reasonably worth the sum of $350. That he executed authority to Clise to collect the rents, and that Clise collected the sum of $250 in all. That he failed to apply any portion of the rents so collected to the payment of the interest on said notes, or either of them, but that on the 11th day of May, 1883, in violation of his agreement, the real property was sold by order of Clise, and purchased in by Clise for the sum of $2,030. That it was reasonably worth the sum of $3,500. Therefore he claims that the note has been paid and satisfied, and demands judgment that the sum of $250 be applied to payment of said notes; that the sum of $250, the value of the furniture over and above the amount for which it was pretended to be sold, should be applied to the payment of said notes and interest, and that the real property be sold or valued by order of the court, and that the proceeds of the sale or valuation, after deducting the amounts due on said notes, and the interest thereon, shall be paid to the defendant, and that he have judgment for the same. Upon motion of defendant's attorneys, W. H. Clise is made a party defendant, and on January 8, 1884, Clise appears, specifically denying each and every allegation in the cross-complaint referred to. On February 16, 1884, the cause was tried by a jury, who returned a verdict, upon the issues joined upon the complaint, in favor of defendant, F. A. Marriott, and upon the issues joined upon the cross-complaint in favor of the defendant, F. A. Marriott, and against W. H. Clise, and assessed his damages at $167.50. Motion for a new trial granted.

The cause was subsequently tried by a jury on the issues joined upon the complaint, who returned a verdict in favor of the plaintiffs for $460.50, and on the issues joined upon the cross-complaint the jury returned a verdict against W. H. Clise for $477 in favor of F. A. Marriott. Judgment was entered upon these last verdicts. Motion for a new trial interposed by defendant in error, W. H. Clise. Judgment vacated; verdict set aside; and thereupon leave was granted to file a demurrer to the cross-complaint on motion of defendant Clise. The grounds of the demurrer are: First. That said amended cross-complaint does not state facts sufficient to constitute a cause of action. Second. Misjoinder of causes of action. Third. Misjoinder of parties defendant. The demurrer was sustained. Plaintiff in error elected to stand by his cross-complaint, and the bill was dismissed as to defendant Clise. Marriott prosecutes this writ of error, assigning 11 grounds of error. No argument was filed on the part of appellee.

Richards & Butler and S. B. McCormick, for plaintiff in error.

Sullivan & May and J. M. Ellis, for defendant in error.

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

All of the errors assigned can be considered under two heads: First. Was it in the power of the court to grant leave to file a demurrer, after issue joined and trial had, for the reason that the cross-complaint did not state facts sufficient to constitute a cause of action? Second. Were the facts set up in the cross-complaint or counter-claim sufficient to constitute a cause of action against defendant in error, Clise?

As to the first proposition, it would seem that, in view of the right to raise this question at any time during the progress of the cause in any and every court, the filing and hearing of the demurrer...