Nutter v. O'Donnell

• Decision Date: 01 December 1882
• Citation: 6 Colo. 253
• Parties: NUTTER ET AL. v. O'DONNELL ET AL.
• Court: Colorado Supreme Court

6 Colo. 253

NUTTER ET AL. v. O'DONNELL ET AL.

Supreme Court of Colorado

December, 1882

Error to District Court of Ouray County.

THE facts are sufficiently stated in the opinion.

Messrs MARKHAM, PATTERSON and THOMAS, for plaintiffs in error.

Mr THOMAS GEORGE, for defendants in error.

BECK J.

We are satisfied that important errors were committed in the trial of this case, and that the decree entered cannot be sustained on the present record. But it is suggested, in behalf of the defendants in error, who were plaintiffs below, that we cannot review the decree upon the evidence, because the bill of exceptions does not contain all the evidence; and that we are prevented by our own rules from considering the errors assigned in respect to the ruling of the court in the admission and rejection of testimony, for the reason that the errors complained of are not particularly specified as the rules require.

The averments of the complaint, as we understand them, are to the effect that a company was formed composed of the plaintiffs and certain of the defendants, for the purpose of prospecting for mineral-bearing veins upon the public lands of the United States, all members to bear a just proportion of expenses incurred in discovering and locating mines, and all save one of the plaintiffs and two of the defendants to share equal undivided interests in the claims located, the three members named to have each two interests therein. That, while the agreement was in force, two valuable lodes were discovered the Alma Mater No. 1 and the Alma Mater No. 2, which lodes, by virtue of the agreement, became the property of the company; but that the defendants located them in their names alone, and have ever since excluded the plaintiffs therefrom, and assert that the plaintiffs have no rights or interests whatever therein.

This suit was brought to enforce a specific performance of the agreement, and to compel the defendants to execute conveyances to the plaintiffs of their respective interests under the agreement.

In respect to the first objection, viz., that we cannot review the decree upon the evidence, because the record does not contain all the evidence, we remark:

First. That the only omission from the record is that of maps and plats, as appears from the following statement in the bill of exceptions: 'The above and foregoing was all the evidence introduced on the trial of said cause, except the plats and maps used by the plaintiffs and defendants, and referred to by the witnesses in their testimony.'

It has been held by this and other courts, that the verdict of a jury or the judgment of a court will not be disturbed upon the ground alone that such verdict or judgment is not supported by the evidence, where the bill of exceptions does not purport to contain all the evidence. The reason of the rule is, that there may have been other evidence introduced upon the precise points claimed to be unsupported, of such character and weight as to entirely obviate the objections, and to influence the court or jury in their action.

But when the reason of a rule ceases, the rule itself generally ceases. Nearly all rules have their exceptions. So has this one. If the record shows specifically what is omitted therefrom, and a question is presented by the assignment of errors which does not involve a consideration of the omitted evidence, the question may be reviewed. We know of no court that has so frequently held that it will not review a judgment upon the evidence, where the bill of exceptions does not purport to contain all the evidence, as the supreme court of Illinois. And yet such was the condition of the record in the case of Howell v. Goodrich, 69 Ill. 559, where the judgment was reviewed upon the evidence, and reversed. While the bill of exceptions in that case did not purport to contain all the evidence, it did purport to contain all that the court considered essential upon the point on which it based its decision.

Second. In this case, the objections, at least to the decree, apparent on the face of the record, are of such a nature that we feel warranted in saying they could not have been aided by the introduction of maps and plats. We are aware that questions often do arise in appellate proceedings, wherein the maps and plats used upon the trial become important evidence-such, for example, as questions concerning boundary or division lines; the intersection of mineral claims and lodes; the course of a meandering stream through a certain tract of land, etc.

This is not a case where we are left in ignorance as to what evidence is omitted; and, as we do not deem the inspection of the maps and plats omitted necessary to the consideration of the objections above referred to, we will proceed to examine the same.

The first is, the failure of the court to take, or order to be taken, an account of the money and labor expended upon the claims which constitute the subject matter of the controversy.

The testimony shows that considerable expense was incurred in the sinking of shafts upon their claims, and in projecting the locations thereof, nearly the whole of which was borne by the defendants, and that the defendants have never been reimbursed. Yet, notwithstanding the agreement as to the expenditures, and the following offer made in the complaint: 'That the plaintiffs have been, and are, willing in all things to comply with their agreement, and to pay their just proportion of proper expenses incurred since the discovery of the lodes,' no account of their expenditures was taken or ordered; the plaintiffs were not required by the decree to reimburse the defendants in any portion of the moneys expended by them; but the defendants were ordered by the decree to convey to the plaintiffs the several interests claimed under the contract.

That the decree is inequitable in this respect requires the citation of no authorities.

But it is suggested that if this view be taken it is unnecessary to reverse the decree, since this court may now reform it, and order an account to be taken.

It the decree were in other respects unobjectionable, perhaps this suggestion might be adopted. But there is another objection of so serious a character, we think, as to make a new trial necessary.

Previous to the formation of this prospecting company, four mineral claims had been taken up by and in the names of the defendants, which they named respectively 'Cleveland,' '8th Ohio,' 'Bertha,' and 'A. T. Stewart.' The defendants Rawles and Crain were interested in these claims, their names being placed upon the claims stakes at the time of location. Now, while there is a conflict of testimony as to whether those of ...