Martin v. Skehan

• Decision Date: 01 February 1875
• Citation: 2 Colo. 614
• Parties: MARTIN et al. v. SKEHAN.
• Court: Colorado Supreme Court

2 Colo. 614

MARTIN et al. v. SKEHAN.

Supreme Court of Colorado

February, 1875

Error to Probate Court, Arapahoe County.

THE action was founded upon a promissory note. The pleas referred to in the opinion were first filed June 9, 1874. On the 15th day of that month they were stricken from the files on motion of plaintiffs; and, on motion of defendant, leave was granted him to file an affidavit of merits, and to refile the same pleas. Defendant then put in an affidavit of merits, which appeared to have been sworn before A. Q. MacGregor, a notary public, on the 1st day of June, 1874, and refiled the same pleas, together with an additional plea. Mr. MacGregor appeared of record as an attorney of defendant. June 20 1874, the pleas were, on plaintiff's motion, stricken from the files, and judgment nil dicit was entered. The damages having been assessed, final judgment was entered June 24, 1874. On the 26th of the same month, and at the same term, defendant again appeared, and moved the court to vacate the judgment which had been entered in the cause and allow him to plead therein, which was allowed upon the payment of costs. In support of this motion the defendant made affidavit setting up his defense substantially as in the pleas. On the 29th day of June, 1874, being of the same term, the costs having been paid, the judgment was vacated and time was given the defendant to plead until the first day of the next term which convened the following week. Plaintiffs excepted to this, and also the previous orders allowing the defendant to plead. The pleas were filed again July 2, 1874, and on the 6th of that month plaintiffs were ordered to reply to them. Plaintiffs not having replied, judgment was entered against them on the 7th of the same month. When the pleas were last filed no affidavit of merits was put in. It was contended, in this court, that the affidavit in support of motion to vacate judgment should be regarded as an affidavit of merits. The pleas are sufficiently stated in the opinion.

Mr. L B. FRANCE, for plaintiffs in error.

Mr. W. S. DECKER, for defendant in error.

BRAZEE J.

The rulings excepted to in the court below, assigned for error, as stated in the abstract, are as follows: The probate court erred in overruling the motion of plaintiff in error for judgment nihil dicit, filed July 12, 1874. Also, in permitting the defendant, Patrick A. Skehan, to refile said pleas after the motion to strike out the same had been sustained. Also, in vacating the judgment rendered in favor of the plaintiffs, and in permitting the defendant, Patrick A. Skehan, to plead in said action, and in continuing said cause for that purpose. Also, in ordering the plaintiff to reply to said pleas of said Patrick A. Skehan. Also, in rendering the judgment, as appears of record, in favor of the said Patrick A. Skehan, and against the said plaintiff, and also, for other errors in the record and proceedings.

The action is in assumpsit, brought upon a joint and several promissory note made by the defendant and Pierce Skehan, Pierce not having been served with process. The defendant plead,

First. The general issue.

Second. That he was a surety for Pierce Skehan, the principal debtor, as the plaintiff well knew, and shortly after the note in suit matured, and on the 10th day of July, 1873, he notified and requested the plaintiffs to forthwith proceed and collect the note of Pierce Skehan, but the plaintiff neglected and refused to do so, and Pierce Skehan became insolvent in the following January, and unable to pay his debts; that the plaintiffs might, by diligence, have collected their demand of Pierce Skehan at any time before January, 1874, who, up to that time, was in good circumstances, able to pay said indebtedness, and by the plaintiffs' laches, the defendant lost the indemnity which he would have had, if the plaintiffs had been diligent in the premises.

Third plea substantially like the second, with an additional averment there upon the alleged notice and request aforesaid being made, the plaintiffs agreed to look to Pierce Skehan for the money due on the note, and exonerated and discharged the defendant from the payment thereof.

The first question we consider is, whether the defense set up by the special pleas is, in law, good. The authorities upon this question are not uniform. The case of Briggs v. Bank etc., 10 Peters, 266, 267, and 14 id. 201, cited by the counsel for plaintiffs to show the defense untenable, was an action brought upon an obligation under seal, which recited that the defendant was a principal, and the court held that he was estopped by this recital in his deed from contradicting it, and distinguished that case from Paine v. Packard, hereinafter referred to. The question in the case of Taylor v. Beach, 13 Ill., arose in action upon a contract...