McDonald v. Hallicy

• Decision Date: 08 February 1892
• Citation: 1 Colo.App. 303,29 P. 24
• Parties: McDONALD v. HALLICY.
• Court: Colorado Court of Appeals

29 P. 24

1 Colo.App. 303

McDONALD v. HALLICY.

Court of Appeals of Colorado

February 8, 1892

Error to Bent county court; R.W. HUTCHCRAFT, Judge.

Replevin by R.L. McDonald against P.W. Hallicy. Judgment for defendant. Plaintiff brings error. Reversed.

William H. Nash, for plaintiff in error.

Stuart Murray & Andrews, for defendant in error.

BISSELL J.

By this suit in replevin, under a claim of title and ownership, the plaintiff in error endeavored to recover from the defendant Hallicy, the possession or the value of a certain stock of goods. The suit was brought in April, 1889, and the defendant, Hallicy, appeared and answered on the 19th of April following. The answer was a denial, and was demurred to by the plaintiff. No further action seems to have been taken in the suit by either party until Kiowa county was set off from Bent as an independent organization. By the terms of the act, (Sess.Laws 1889, p. 223,) all suits pending in the county court of Bent county, where the cause of action arose within the territory set off, or where the defendant resided in that territory at the time of the division, were to be transferred to Kiowa county. After the passage of the act and in October of that year, defendant, by his attorney filed a motion to transfer this action to the county court of Kiowa county. It is not easy to determine the basis of the court's action upon that motion. It may be premised here, for the purposes of this decision, that, according to the stipulation of counsel and the certificate of the judge, the record which is sent up is a complete transcript of all the record in the case, and contains copies of all the papers filed. There was no showing as to the residence of the defendant, or as to the locality in which the cause of action arose, but the order was made, and the cause transferred to that county. Upon the arrival of the case within that jurisdiction, and upon the 18th day of November following, the defendant filed what is termed in the record an amendment to his answer. The amendment set up that the defendant was an officer, and had seized the goods under certain writs of attachment issued out of divers courts against one Graham, and that the property had been taken under these writs as Graham's property, who was alleged to be the owner of it. No motion was made for leave to file this pleading, no leave was granted, nor is there any recital in the amendment itself that it was filed in pursuance of leave obtained for the purpose. The demurrer was not disposed of by order of the court, nor otherwise, unless it may be said to have been withdrawn by the course taken by the defendant. On the day on which this amendment was filed, the cause was set down for trial, and tried, and judgment rendered for the defendant for $900. The plaintiff afterwards appeared, and filed a motion to set aside the judgment on recital and proof of these and various other irregularities. The court denied the motion, and plaintiff brings the case here with a record disclosing this state of facts. The other irregularities apparent upon the face of the record are not referred to, since they are unessential to the determination of the controversy.

It is evident that the court erred in overruling the motion to set aside the judgment, and that the court was without power to try the case, and enter judgment, at the time this action was taken. The filing of the demurrer raised an issue of law which, in the regular and ordinary course of proceedings must of necessity have been determined prior to the trial and rendition of judgment. There are but two ways in which that issue could be disposed of--First, either by the filing of the amendment to the answer which, ipso facto, would dispose of it; or, second, by the entry of an order of the court in the premises which would be a judicial determination of the issue. So far as we know, the exact scope of section 73 of the Code of 1887 ^[1] has never been settled by a decision of the supreme court. The case which more nearly decides it than any other is Mallan v. Higenbotham, 10 Colo. 264, 15 P. 352. In that...