Newell v. Giggey

• Decision Date: 24 May 1889
• Citation: 13 Colo. 16,21 P. 904
• Parties: NEWELL v. GIGGEY.
• Court: Colorado Supreme Court

21 P. 904

13 Colo. 16

NEWELL v. GIGGEY.

Supreme Court of Colorado

May 24, 1889

Appeal from Boulder county court.

This action was brought in the court below by Giggey against Newell, to recover damages arising from an alleged tort committed by Newell. This tort consisted in the willful driving away of plaintiff's bull from its usual range resulting, as is alleged, in damages to plaintiff amounting to $670. The cause was tried to a jury, and verdict and judgment were given for plaintiff in the sum of $35. To reverse this judgment the present appeal was taken.

Chase Withrow and J. McD. Livesay, for appellant.

HELM C.J., ( after stating the facts as above.)

Counsel's first objection must be overruled. It is based upon the proposition that section 28, Code 1883, relating to the subject of venue, requires that such actions as the one at bar shall be brought in the county where the alleged tort was committed. To support their position, counsel argue that the word 'may' found in the last sentence of the section mentioned, must be construed as meaning 'shall.' We are not called upon to discuss this objection, for the reason that the question is practically stare decisis in this state. Bean v. Gregg. 7 Colo. 499, 4 P. 903; Law v Brinker, 6 Colo. 555. These two cases were suits upon contracts, and hence fall within a different clause of the statutory provision referred to; but this fact in no wise alters the conclusion reached, or affects the reasons upon which it is founded. It is not perceived how a distinction could be made between torts and contracts, whereby the word 'may' shall be construed as merely permissive in one case and as mandatory in the other. This objection must therefore be overruled. The action might have been brought in Gilpin county, but there was also statutory authority to bring it in Boulder.

Upon the other branch of the case, as presented, we are reluctantly compelled to sustain one of the positions taken by appellant. Under the complaint, as well as the charge, it was necessary that the driving away of plaintiff's bull from his accustomed range by defendant should be found willful. The burden of establishing this fact was upon plaintiff. Yet from a careful examination of the abstract, upon which alone we are compelled to rely, it appears not only that he failed to sustain such burden, but also that none of his proofs can be fairly said to bear upon the question. The evidence...