People ex rel. Fitzpatrick v. District Court of Thirteenth Judicial Dist. for Adams County

• Decision Date: 07 November 1904
• Citation: 33 Colo. 77,79 P. 1014
• Parties: PEOPLE ex rel. FITZPATRICK et al. v. DISTRICT COURT OF THIRTEENTH JUDICIAL DIST. FOR ADAMS COUNTY et al.
• Court: Colorado Supreme Court

79 P. 1014

33 Colo. 77

PEOPLE ex rel. FITZPATRICK et al. v. DISTRICT COURT OF THIRTEENTH JUDICIAL DIST. FOR ADAMS COUNTY et al.

Supreme Court of Colorado

November 7, 1904

MANDAMUS by the people, on the relation of Edward Fitzpatrick and another, to compel E. E. Armour, as judge of the district court of the Thirteenth Judicial District for the county of Adams, to enter a judgment thereof in favor of relators and against James Ryan. Peremptory writ granted.

Fillius & Davis, for petitioners.

Jas. J Sullivan, for respondents.

STEELE J.

This is an original proceeding in mandamus to require the judge of the district court of the Thirteenth Judicial District to enter a judgment which it is alleged was duly given by the court, but not entered of record. The petition for writ of mandamus was filed and an alternative writ issued on May 14, 1904. On May 27, 1907, the answer of the respondent was filed, verified by James J. Sullivan, his attorney. June 6, 1904, the petitioners filed a motion for judgment upon the pleadings. The answer is not verified in the manner required by law, and, when the respondent's attention was called to the fact that the verification was insufficient, he made no application to amend. We therefore cannot regard the answer as controverting the facts stated in the petition. Grand Valley Irrigation Co. v. Lesher et al. 28 Colo. 273, 65 P. 44.

It satisfactorily appears to us from the petition, which is properly verified, that in a suit pending in the district court of the Thirteenth District, wherein James Ryan was plaintiff, and Edward Fitzpatrick and R. H. Hartley were defendants, a jury, upon the trial of said cause, on September 28, 1903, rendered a verdict in favor of the defendants; that thereafter, and on October 7, 1903, the motion of the plaintiff for a new trial was overruled, and judgment upon said verdict pronounced by the court; that the judgment so pronounced by the court was never entered of record; that from said judgment the defendants prayed an appeal to the Court of Appeals, which appeal was allowed, the court fixing the amount of the appeal bond, and the time within which the bond should be filed, and granting the plaintiff 90 days in which to tender and file a bill of exceptions, and that thereafter the bill of exceptions was signed and sealed by the respondent, as the judge of the district court; that on February 29, 1904, the plaintiff filed his motion for a new trial, reciting that the defendants had neglected and refused to request that final judgment be rendered upon the verdict during the September term, 1903, of said court. Afterward the defendants filed a counter motion, praying that judgment be entered upon the verdict nunc...