People ex rel. Sullivan v. District Court of Lake County

• Decision Date: 07 January 1901
• Citation: 64 P. 194,28 Colo. 218
• Parties: PEOPLE ex rel. SULLIVAN v. DISTRICT COURT OF LAKE COUNTY et al.
• Court: Colorado Supreme Court

64 P. 194

28 Colo. 218

PEOPLE ex rel. SULLIVAN v. DISTRICT COURT OF LAKE COUNTY et al.

Supreme Court of Colorado

January 7, 1901

CERTIORARI BY the people, on relation of Martin Sullivan, against the district court of Lake county and Hon. Frank W. Owers, judge thereof, to review an order dismissing petitioner's complaint. Writ dismissed.

Upon the ex parte application of petitioner, Martin Sullivan, for a writ of certiorari, directed to the district court of Lake county and the judge thereof, an order to show cause was issued, and upon filing the return, which is not controverted, respondents move to vacate the order. The facts are that, in the district court of Lake county, Martin Sullivan, petitioner here, as plaintiff there, on the 23d day of May, 1887, brought a suit for the enforcement of a lien. On March 2, 1890, default was entered against the defendants and judgment subsequently rendered against them, which, on the 9th day of May, 1890, was set aside upon their application. On the 2d day of October, 1890, by agreement of parties, the cause was referred to Charles Cavender, Esq., an attorney of that court, for the purpose of trying the issues of fact and questions of law, and reporting the same to the court. For more than five years thereafter no further steps were taken in the action, and on the 6th of March, 1896, the court dismissed the same under one of its rules, which provided that an action should be dismissed by order of the court when no progress had been made or entered therein for a period of one year. On January 29, 1900, a motion in the district court to vacate the order dismissing the cause, and to reinstate the same, was made by the plaintiff, and on the 5th of March, 1900, it was denied. On the 26th of April 1900, it seems that for the first time the referee took his oath of office, and, attended by plaintiff's counsel proceeded to hear testimony, and afterwards made findings of fact, and prepared a decree based thereon in favor of the plaintiff, and the report of his proceedings he afterwards tendered to the court on the 28th day of August, 1900, but the court refused to allow it to be filed. The plaintiff then, on the 8th of December, 1900, filed this application for a writ of certiorari.

Laws & Freeman, for petitioner.

Clinton Reed, for respondents.

CAMPBELL C.J. (after stating the facts).

It does not clearly appear from the petition just what particular order of the district court is sought to be reviewed, but, since the writ can be used to review only the final determination of an inferior tribunal (Schwarz v. County Court, 14 Colo. 44, 23 P. 84), we take it to be the order of the district court entered March 6, 1896, dismissing the action, as that is the only final order to which our attention has been called; neither the ruling on the motion to vacate that order, nor that denying the referee's application to file his report, being a final judgment.

Under the constitution, whence is derived our jurisdiction to issue the writ of certiorari, the right thereto is not absolute but rests in the sound discretion of the court. Under the facts of this case, it does not become necessary to determine whether the district court had power to make the rule under which the cause was...