People ex rel. Clay v. District Court of Twelfth Judicial Dist. of Colorado In and For Conejos County

• Decision Date: 02 July 1923
• Docket Number: 10661
• Citation: 218 P. 745,74 Colo. 40
• Parties: PEOPLE ex rel. CLAY et al. v. DISTRICT COURT OF TWELFTH JUDICIAL DIST. OF COLORADO IN AND FOR CONEJOS COUNTY et al.
• Court: Colorado Supreme Court

218 P. 745

74 Colo. 40

PEOPLE ex rel. CLAY et al. v. DISTRICT COURT OF TWELFTH JUDICIAL DIST. OF COLORADO IN AND FOR CONEJOS COUNTY et al.

No. 10661

Supreme Court of Colorado, En Banc.

July 2, 1923

Rehearing Denied Oct. 1, 1923.

Original proceedings in prohibition by the People of the State of Colorado on the relation of John Clay and others, copartners doing business under the name of Clay, Robinson & Co. against the District Court of the Twelfth Judicial District in and for the County of Conejos, and Jesse C. Wiley, Judge thereof, and others.

Writ denied, and cause dismissed.

Teller C.J., and Denison, J., dissenting.

P. A. Wells, of Chicago, Ill., Hodges, Wilson &amp Rogers, of Denver, Albert L. Moses, of Alamosa, and Henry C Vidal, of Denver, for relators.

Jesse Stevenson, of Monte Vista, for respondent Hon. Jesse C. Wiley.

Ralph L. Carr, of Antonito, for respondents administrators.

L. F. Twitchell, of Denver, and J. T. Adams, of Alamosa, for respondent Warshauer-McClure Sheep Co.

J. D. Pilcher and Charles H. Woodard, both of Alamosa, for respondent H. E. Warren.

BURKE J.

This is an original proceeding in prohibition. It is before us now on an alternative writ, returns thereto, and demurrers and answers to the returns.

Relators claimed a mortgage on 50,000 head of sheep and increase given by one Jordan, now deceased, and whose estate is insolvent. Having filed their claim for the debt and had it allowed by the administrators, they petitioned the county court, under section 5344, C. L. 1921 (L. 1917, c. 99, p. 391), for leave to foreclose and at the same time asked that because of the disqualification of the county judge the petition be certified to the district court as in such case provided. The certification followed. Other mortgagees, claiming part of the same property, filed like petitions. Objections to the foreclosures were filed by other creditors and the administrators. In the same court certain replevin suits were pending involving some of the same animals. Said suits were tried, brought here on error, and are this day decided. Therein the claims of certain of the plaintiffs as against relators are upheld.

October 6, 1921, a 'consent order' was entered which reads in part as follows:

'It has been, and no doubt will be, impossible to agree upon, establish or settle said respective claims other than by litigation, but all parties realize that it will be improvident, expensive and to the detriment of all claimants and all parties concerned to hold said sheep, pending the settlement of said contests and claims, all of which are in dispute, and that it is advisable to sell and dispose of said sheep to the end that the expenses incident to keeping the same may be stopped.

'Clay, Robinson & Co. claim to be in the possession of said sheep and their increase, and as large dealers in sheep claim they are in a better position than the other claimants to sell the same, and have expressed their desire and willingness to do so and become personally responsible to each and all for any and all claims that such claimants or any thereof may legally establish to said sheep, or any part thereof, which is superior and paramount to their lien thereon and claim thereto, and also agree to be personally responsible to said estate and other claimants respectively if rights superior to said Clay, Robinson & Co. are legally established to said sheep without either or any of the parties hereto conceding any rights of each other in or to said sheep, or any part thereof, or upon the part of any other claimants, and without any party hereto waiving or releasing any of their respective rights or claims, and at all times reserving to each of the parties hereto the right to contest each and every claim of the other.

'It is therefore ordered and adjudged by the court: That without conceding or waiving any claims or rights, that Clay, Robinson & Co. may sell and dispose of the ewes and lambs for the best price obtainable which they now claim to possess and control * * * but in so selling the same the said Clay, Robinson & Co. shall become responsible to whomsoever shall establish a claim to said sheep, or any part thereof, superior to the lien and claim of the said Clay, Robinson & Co. for such or all of said ewes and lambs to which claim shall be established as against said Clay, Robinson & Co. by said estate or by any claimant thereto, at the price for which said sheep are so sold by said Clay, Robinson & Co., together with interest thereon at eight per cent. per annum on said sale price from the date of said sale until said claims or right may be established. * * * Provided, further, that if it shall be finally determined by any court of last resort to which it may be appealed, if so appealed, that the mortgage claimed by said Clay, Robinson & Co., is invalid, then and thereupon the proceeds of such sale, less the amount determined to be due Clay, Robinson & Co., shall be with reasonable promptness paid by them into the registry of this court with interest as aforesaid to abide the orders of this court and for the use of the party or parties lawfully entitled thereto. * * *

'It is specifically ordered that none of the parties hereto shall be held to have waived, relinquished, or released any rights in or to said sheep which they now have or claim to have, as the purpose of this order is to curtail and stop the expense of running said sheep and prevent delay in the sale thereof, and to convert the ewes and lambs into money and funds to be held by said Clay, Robinson & Co., and to allow all claimants to proceed with any claims which they may have to said sheep as in conversion against said Clay, Robinson & Co. and upon any recovery being had, said Clay, Robinson & Co. shall pay such claimant, so recovering, the amount received for said sheep so recovered. * * *

'In allowing said Clay, Robinson & Co. to make such sale it is not decided that Clay, Robinson & Co. have any valid mortgage or lien against said sheep, nor shall this order in any way interfere with or prevent any or all parties contesting the validity of the said so-called mortgage or the validity of any other mortgage or claim made by any party hereto or by any other party, and none of the parties hereto shall be entitled to a plea of res adjudicata by reason of the making of the terms of this order.

'This court shall retain jurisdiction of the above and foregoing matters for the purpose of making such other and further orders and decrees as shall or may be necessary in the premises.

'The validity of the mortgages and claims herein referred to are not determined by this order, but are to be determined the same as if this order had not been made.

'That said Clay, Robinson & Co. shall within a reasonable time make due report to the court of their acts and doings in the premises relative to the sale of said sheep.'

That order was consented to in open court by relators and approved by them in writing. The approval of the administrators was conditioned upon relators giving bond for their compliance with the terms thereof.

February 28, 1922, relators reported sales under said consent order and receipts therefrom of $166,762.39. April 25, 1922, the court held that report insufficient, and granted time for a supplemental report. April 26, 1922, relators were ordered to give bond in the sum of $150,000, conditioned that----

They should 'promptly and faithfully...