McClellan v. Hurd

• Decision Date: 06 May 1895
• Citation: 40 P. 445,21 Colo. 197
• Parties: McCLELLAN et al. v. HURD et al. [1]
• Court: Colorado Supreme Court

40 P. 445

21 Colo. 197

McCLELLAN et al. v. HURD et al. ^[1]

Supreme Court of Colorado

May 6, 1895

Error to court of appeals.

Wells, McNeal & Taylor, for plaintiffs in error.

Ezra Keeler and W. T. Hughes, for defendants in error.

HAYT C.J. (after stating the facts).

The question as to the jurisdiction of this court to entertain this cause upon error must be determined in limine. Our jurisdiction is fixed by the act creating the court of appeals. In this case it depends upon the construction of the first and fourth sections of that act. By the first the jurisdiction of this court is retained when 'the matter in controversy relates to a franchise or freehold.' By the fourth section it is provided that the court of appeals 'shall have jurisdiction, not final, in cases where the controversy involves a franchise or freehold.' By other provisions this court is given jurisdiction in all cases not within the final jurisdiction of the court of appeals. These provisions have received consideration by this court in a number of cases. In the case of Wyatt v. Irrigation Co., 18 Colo. 298, 33 P. 144, it was held that the word 'involve' and the word 'relate,' as used in the act creating the court of appeals, are synonymous. In the case of Harvey v. Insurance Co., 18 Colo. 354, 32 P. 935, the following statute was under review: 'Appeals to the supreme court from the district county and superior courts shall be allowed in all cases where the judgment or decree appealed from be final, and shall amount, exclusive of costs, to the sum of one hundred dollars, or relate to a franchise or freehold.' It was there held that an action does not relate to a freehold, so as to give the right of appeal, unless the right or title to the freehold is the direct subject of the action, nor unless the judgment is conclusive of such right or title, until reversed. In McCandless v. Green, 21 Colo. ----, 39 P. 64 this court refused to take jurisdiction by appeal of an action to foreclose a mechanic's lien upon real property upon the ground that the freehold was not involved. In the case of Railroad Co. v. Watson, 105 Ill. 217, the action was for the purpose of subjecting certain real estate to the payment of judgments held by the plaintiffs, and the supreme court of that state held that the case did not involve a freehold, so as to give that court jurisdiction by appeal. This is because the ultimate object of such suits is to obtain satisfaction of the claim, and the suit may be defeated at any time by the payment of the same; the real estate, at most, being only collaterally or incidentally involved. In all such cases the courts have uniformly held that a freehold is not involved in the sense that the word is used in the statute. Wyman v. Felker, 18 Colo. 382, 33 P. 157; Pinneo v. Knox, 100 Ill. 471; Clement v. Reitz, 103 Ill. 315; Goodkind v. Bartlett, 136 Ill. 18, 26 N.E. 387. On the contrary, when the title to real property is directly put in issue by the pleadings, and the judgment, until reversed, is conclusive of such title, a freehold is involved, and the right to review given by the statute exists. The case of Piper v. Connelly, 108 Ill. 646, is strongly in point. That was an action of trespass. The pleadings were the general issue and the plea of liberum tenementum, which latter was put in issue by the replication, and the court held that the action involved a freehold, and sustained its jurisdiction to review the case upon appeal. The same views are announced in the subsequent cases of Lodge v. Klein, 115 Ill. 177, 3 N.E. 272, and Elson v. Comstock, 150 Ill. 303, 37 N.E. 207.

After the filing of the answer and replication, this suit became more than a money demand. The issues than embraced a complete involvement of the fee, and the judgment of the court of appeals, if unreversed, is conclusive against the right or title set up by Catherine McClellan. Such a judgment is not only conclusive upon the right of possession, but upon the title as well, as this is the precise question upon which the case turned. Hurd v. McClellan, supra; Elson v. Comstock, supra; Dunckle v. Wiles, 5 Denio, 296; 21 Am. & Eng. Enc. Law, pp. 244, 245; Caperton v. Schmidt, 26 Cal. 479. It therefore appears that the freehold is involved, and the jurisdiction of this court must be sustained.

Passing to a consideration of the merits, in so far as Catherine McClellan is concerned, it is sufficient to say that the opinion of the court of appeals fully answers every contention made in her behalf. In the very able opinion of Mr. Justice Reed it is shown that she held a deed to the property at a time when the title was in litigation between the appellants as plaintiffs and her grantor as defendant, and, suppressing knowledge of her title, participated in and directed the defense; and it was very properly held, under these circumstances, that the judgment against her grantor was conclusive against her claim of title. Nothing new, in this regard, has been urged in this court. We are satisfied that the judgment of reversal entered against Catherine McClellan by the court of appeals was warranted by the record, and it is therefore affirmed.

In the district court, plaintiffs were nonsuited as to the defendant Forbes, and this judgment was, upon appeal, affirmed by the court of appeals. Plaintiffs in error contend that...