Mullin v. People

• Decision Date: 12 September 1890
• Parties: MULLIN v. PEOPLE et al.
• Court: Colorado Supreme Court

24 P. 880

15 Colo. 437

MULLIN v. PEOPLE et al.

Supreme Court of Colorado

September 12, 1890

Error to district court, Gunnison county.

In the court below plaintiff in error was adjudged guilty of willful contempt of court, and fined therefor in the sum of $150. The alleged contempt consisted in his making and causing to be filed a petition for change of venue in a certain case at the time pending in the district court of Gunnison county, and to which action plaintiff in error was the real party in interest although not a party to the record. Said petition is in substance as follows: 'Carrie L. Davis v. John H Bowman. (No. 324.) In the district court of the seventh judicial district of the state of Colorado, and for the county of Gunnison. Your petitioner would respectfully represent to the court that he is the real party defendant in interest in the matter in controversy in the above-entitled action; that the defendant John H. Bowman was, at the time the supposed cause of action accrued, the qualified and acting sheriff of Gunnison county; that the said defendant Bowman has no personal interest in the result of this action and is only a nominal party defendant. Your petitioner says that he fears that he will not receive a fair trial in this court on account that the judge is prejudiced in favor of the plaintiff herein, and for reason for said fears he says that at a prior term of this court, when the above-entitled action and another action pending in this court, and before the judge hereof, wherein the above-named plaintiff was plaintiff, and the above-named defendant and others, of which your petitioner was one, were defendants, were about to be called for trial, being cause numbered No. 325, the wife of the judge of this court was at the residence of your petitioner, and, in excuse for her short visit to your petitioner herein, said, in substance, and in presence of your petitioner and his wife, that she must go and see the judge and arrange with him to have Mrs. Davis (meaning the plaintiff herein) to win her case; that at said time, as petitioner was informed, the judge of this court and his wife were boarding in the house and the guests of Mr. and Mrs Davis. Your petitioner further says that immediately thereafter he informed his attorneys of the foregoing facts, and requested them to make an application for a change of venue, but was advised by them to allow the judge to try one of said causes, and it could then be ascertained whether the judge was in any manner prejudiced in favor of the plaintiff herein. Your petitioner further says that one of said causes was tried by this court, and that Mrs. Davis did win her said cause, and your petitioner believes that, from the rulings of said court, and the instructions of the court to the jury in said cause, this court is prejudiced in favor of the plaintiff herein. Wherefore he prays that the venue in this action be changed. Respectfully, LOUDON MULLIN.' The present proceeding was commenced by the filing of an information by the district attorney of the district in which the court was sitting. The remaining facts necessary to a full understanding of the case appear either in the opinion of the court in the case at bar, or are set forth sufficiently in the report of the case of Thomas v. People, 14 Colo. ----, 23 P. 326. The only difference in the two cases arises from the fact that Thomas was the attorney who prepared and presented the petition for change of venue, while Mullin alone made the affidavit thereto, and, in the former case, the information filed as a basis of the contempt proceedings was not verified, while in the present case the information appears to have been duly verified by the district attorney.

Thomas & Thomas and Alex. Gullett, for plaintiff in error.

The Attorney General and H. M. Hogg, Dist. Atty., for the People.

HAYT, J.

As the information in this case is verified, it may properly be allowed to perform the office of the affidavit made necessary by the statute as the foundation of a proceeding for constructive contempt. The record shows that the petition for a change of venue was presented...