Peck v. Peck

Citation33 Colo. 421, 80 P. 1063
Case DateMay 01, 1905
CourtSupreme Court of Colorado

80 P. 1063

33 Colo. 421

PECK et al.
v.
PECK.

Supreme Court of Colorado

May 1, 1905


Appeal from District Court, Arapahoe County; John I. Mullins, Judge.

Action by George Peck and others against Ira F. Peck. Judgment for defendant, and plaintiffs appeal. Affirmed. [80 P. 1064]

[33 Colo. 422] E. T. Wells and John G. Taylor, for appellants.

William T. Rogers and John F. Mail (Isaac Pelton, of counsel), for appellee.

BAILEY, J.

This action was instituted by George Peck and a number of stockholders of the Mono Mining, Milling & Prospecting Company against Ira F. Peck, the appellee herein. The action was brought for an accounting of the moneys alleged to have been received and disbursed by the defendant as president of the company. The matter was referred, and the referee duly made his report and findings in favor of the plaintiffs. Upon the filing of the referee's report the defendant filed written objections thereto, and moved for a new trial. These objections, in part and in so far as it is necessary to consider them, are as follows: '(1) The facts set out in the complaint are insufficient to constitute a cause of action.' [33 Colo. 423] '(6) The conclusion that the Mono Mining, Milling & Prospecting Company should have judgment for thirty-one hundred and fifty-seven dollars and twenty cents, with interest, is not supported by the evidence or findings of fact. (7) Such judgment cannot be entered against the Mono Mining, Milling & Prospecting Company, which is not a party plaintiff or defendant.' '(15) That the referee has no power, jurisdiction, or authority to take the evidence or report the findings, judgment, or decree to be entered in this case, for the reason that the Mono Mining, Milling & Prospecting Company is not a party to the action, and there is no reason alleged in the bill or shown in the testimony why it was not made a party.' Upon the hearing of this motion it was by the court 'ordered and decreed that the findings and conclusions of the referee be set aside, and that the bill of complaint of the plaintiffs be dismissed, and defendant recover his costs.' Plaintiffs then moved to amend the complaint by introducing as a party therein the Mono Mining, Milling & Prospecting Company. This application was denied, and the action was brought to the Court of Appeals by the plaintiffs upon appeal, and has been transferred to this court.

It is unnecessary for the court to determine whether or not the allegations of the complaint allege a sufficient reason for not...

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13 practice notes
  • Rumsey v. New York Life Ins. Co., 8010.
    • United States
    • Colorado Supreme Court of Colorado
    • 1 Marzo 1915
    ...party in interest as a beneficiary. The exception to the rule stated is announced in 31 Cyc. 742, and has been considered in Peck v. Peck, 33 Colo. 421, 80 P. 1063, and in Colorado State Bank v. Davidson, 7 Colo.App. 91, 42 P. 687. If we were to admit that the policy was taken by Rumsey for......
  • Ireland v. Wynkoop, Nos. 71--301
    • United States
    • Colorado Court of Appeals of Colorado
    • 24 Junio 1975
    ...any relief from the Association; it was joined as a defendant in the suit solely for purposes of the derivative claims. See Peck v. Peck, 33 Colo. 421, 80 P. 1063. As already discussed, the majority of the derivative claims were dismissed pursuant to motions by the other defendants. Therefo......
  • Conley v. Johnson, No. 7451.
    • United States
    • Montana United States State Supreme Court of Montana
    • 1 Febrero 1936
    ...even by the Supreme Court of its own motion as in the instant case. This is the first mention of this defect of parties. Peck v. Peck, 33 Colo. 421, 422-425, 80 P. 1063;Mitau v. Roddan, 149 Cal. 1-9, 84 P. 145, 6 L.R.A. (N.S.) 275; McKenzie v. Evans, supra. The bank examiner on his own init......
  • Holmes v. Jewett
    • United States
    • Colorado Supreme Court of Colorado
    • 7 Julio 1913
    ...benefit by the judgment, the corporation is the party directly interested. Byers v. Rollins, 13 Colo. 22, 21 P. 894; Peck v. Peck, 33 Colo. 421, 80 P. 1063; [55 Colo. 192] Mackey v. Burns, 16 Colo.App. 6, 64 P. 485; Starr v. Heald, 28 Okl. 792, 116 P. 188; McCloskey v. Snowden, 212 Pa. 249,......
  • Request a trial to view additional results
13 cases
  • Rumsey v. New York Life Ins. Co., 8010.
    • United States
    • Colorado Supreme Court of Colorado
    • 1 Marzo 1915
    ...party in interest as a beneficiary. The exception to the rule stated is announced in 31 Cyc. 742, and has been considered in Peck v. Peck, 33 Colo. 421, 80 P. 1063, and in Colorado State Bank v. Davidson, 7 Colo.App. 91, 42 P. 687. If we were to admit that the policy was taken by Rumsey for......
  • Ireland v. Wynkoop, Nos. 71--301
    • United States
    • Colorado Court of Appeals of Colorado
    • 24 Junio 1975
    ...any relief from the Association; it was joined as a defendant in the suit solely for purposes of the derivative claims. See Peck v. Peck, 33 Colo. 421, 80 P. 1063. As already discussed, the majority of the derivative claims were dismissed pursuant to motions by the other defendants. Therefo......
  • Conley v. Johnson, No. 7451.
    • United States
    • Montana United States State Supreme Court of Montana
    • 1 Febrero 1936
    ...even by the Supreme Court of its own motion as in the instant case. This is the first mention of this defect of parties. Peck v. Peck, 33 Colo. 421, 422-425, 80 P. 1063;Mitau v. Roddan, 149 Cal. 1-9, 84 P. 145, 6 L.R.A. (N.S.) 275; McKenzie v. Evans, supra. The bank examiner on his own init......
  • Holmes v. Jewett
    • United States
    • Colorado Supreme Court of Colorado
    • 7 Julio 1913
    ...benefit by the judgment, the corporation is the party directly interested. Byers v. Rollins, 13 Colo. 22, 21 P. 894; Peck v. Peck, 33 Colo. 421, 80 P. 1063; [55 Colo. 192] Mackey v. Burns, 16 Colo.App. 6, 64 P. 485; Starr v. Heald, 28 Okl. 792, 116 P. 188; McCloskey v. Snowden, 212 Pa. 249,......
  • Request a trial to view additional results

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