Michael v. Mills

• Decision Date: 07 May 1896
• Citation: 22 Colo. 439,45 P. 429
• Parties: MICHAEL v. MILLS et al.
• Court: Colorado Supreme Court

45 P. 429

22 Colo. 439

MICHAEL v. MILLS et al.

Supreme Court of Colorado

May 7, 1896

Error to district court, Park county.

Action by Tona F. Michael against W. H. Mills and others. Judgment for defendants, and plaintiff brings error. Affirmed.

A. J. Sterling and A. S. Blake, for plaintiff in error.

C. A Wilkin, for defendants in error.

CAMPBELL J.

This is an action in support of an adverse claim filed by plaintiff in error as plaintiff below, and was brought to try the possessory right and title to the ground in conflict between the Rogers lode claim, owned by the plaintiff, and the W. H M., Harold, and Arthur lode claims, owned by the defendants. There was a trial before a jury, which found that the defendants were entitled to the possession of the ground in controversy, upon which the court entered judgment in favor of the defendants, to reverse which the plaintiff brings his writ of error to this court.

Ten assignments of error are filed and argued. The first relates to an order of the court overruling the plaintiff's application for a continuance on the ground of the excusable absence of four material witnesses. The second assignment questions the order of the court denying plaintiff's application for a change of the place of trial on the ground of the prejudice of the inhabitants of the county, and the convenience of witnesses. Such orders are discretionary with the trial court, and are reviewable only in case of manifest abuse of discretion. The record justifies the ruling of the court upon both of these applications. The order setting the case for trial on May 23, 1893, was made on the 16th day of the same month. On the day of the trial these applications were filed by the plaintiff, without any previous intimation that they would be made, or notice to the defendants of the grounds upon which they were based. The showing of diligence by the plaintiff as to the efforts made to secure the presence of witnesses, or their depositions was insufficient. The names of three of the witnesses were not given, nor was there any reasonable showing that any of them could probably be secured at any subsequent term of the court. No reason was furnished why these applications were not sooner made, and, in the affidavits in support of these motions, it appears that the alleged reasons therefor were known to the plaintiff long prior to the term of the court when the applications were made. The reasons given why the change of venue should be granted, and the facts upon which it was based, were controverted by the affidavits filed by the defendants in resisting the application; and, as the defendants were ready for trial with their witnesses, it was certainly no abuse of discretion to deny these applications.

When the case was called for trial, plaintiff's counsel orally moved the court to settle the pleadings, because the answer contained conclusions of law, and not a statement of facts. We are at a loss to know just what rule of practice counsel had in mind, but such a motion, by name, so far as we are advised, is unknown to our practice, though possibly counsel, by a proper pleading and at the appropriate time, might have raised the objection now urged in the argument. But the objectionable pleading, or the part thereof which is said to be defective, is not set out in the printed abstract, in accordance with rule 14 of this court, nor is any error assigned to the ruling of the court thereon, and for this reason we decline to consider the point attempted to be raised.

Plaintiff in error complains that the court refused to admit in evidence a certified copy of his adverse filed in the United...