People ex rel. Warren v. Carpenter

• Decision Date: 03 March 1902
• Citation: 68 P. 221,29 Colo. 365
• Parties: PEOPLE ex rel. WARREN et al. v. CARPENTER, District Judge.
• Court: Colorado Supreme Court

68 P. 221

29 Colo. 365

PEOPLE ex rel. WARREN et al. v. CARPENTER, District Judge.

Supreme Court of Colorado

March 3, 1902

Original mandamus by the people, on the relation of Elizabeth Iliff Warren and others, against Samuel L. Carpenter, district judge. Petition dismissed.

When the appeal of Warren v. Adams was before this court at the January, 1894, term, the decree of the lower court, holding appellants as trustees for the benefit of appellee of the lands in controversy, was affirmed, but its execution was suspended, as to the conveyance of title, until the amount found to be due to the appellants, if any, on account of the payment of taxes, was refunded. That their amount might be ascertained, the cause was remanded, with instructions to the court below to take an accounting, and require payment to appellants before devesting their title. Warren v. Adams, 19 Colo. 515, 36 P. 604. Upon receipt of the remittitur, the district court proceeded to execute the mandate, took an accounting, and embraced therein matters not theretofore in issue, and upon its findings entered judgment. From this judgment the defendants (Warren et al.) appealed to this court, and at the March, 1900, term the same was set aside because of the error of the district court in attempting to follow those instructions. The cause was remanded, 'with directions to dismiss the cross complaint of plaintiff [which set forth the new issues just referred to], and render judgment in favor of defendants for the amount of taxes found to have been paid by them and deceased upon the lands in question, with interest, and that such sum, together with the costs incurred by them in this court in this case, as well as below on the accounting, be repaid by plaintiff before title to such lands vested in him, and that, on failure to pay such sum within some reasonable time to be fixed by the trial court, the decree establishing the trust be set aside, and the action of plaintiff dismissed.' Adams v. Warren, 27 Colo. 293, 61 P. 609. When the cause again reached the district court, and on the 27th day of December, 1900, upon an application and showing made by the defendants, it appeared to that tribunal, the Fourth division of which was then presided over by the Hon. Calvin P. Butler, that Andy M Adams, the original plaintiff, was then dead, and his heirs were therefore substituted as parties plaintiff. The court then found that the taxes, interest, and costs amounted to $3,797.42, and ordered plaintiffs to pay the same to defendants within 90 days from that date, and upon failure to do so the decree in plaintiffs' favor, theretofore rendered, should become inoperative, and the action be dismissed. At a subsequent term of the same court, and in the same division, and before Hon. John I. Mullins, presiding judge therein, but within the 90 days, to wit, on the 24th day of March, 1901, the same being during the January term Thomas B. Stuart and Charles A. Murray, who had rights in the decree as grantees of Andy M. Adams of certain undivided interests in the real estate involved, applied for an order subrogating them to all the rights of defendants in the personal judgment which the mandate contemplated, upon the payment by Stuart and Murray of the amount thereof. The ground of the application was that none of the plaintiffs (the heirs of Adams) in the action would or could pay that judgment, and Stuart and Murray, having undivided interests in the lands in question, in order to protect their interests, were obliged to pay it, and when they did so in equity they were entitled to be subrogated to all the rights of defendants therein. Upon a hearing of this application which was supported by evidence, at which the defendants without objecting to its being heard, appeared by their attorneys and participated, an order of allowance was entered making the subrogation, and no exception was taken to it. Afterwards, on the 17th day of April, 1901, the same being at a subsequent term, viz., the April term, before the Honorable Samuel L. Carpenter, one of the five judges of the court who, in the order of rotation observed by them, was assigned to division 4, in which the cause was still pending, the defendants Warren et al. made their application asking him to set aside and disregard the previous order of Judge Mullins, and to carry out the mandate of this court by entering an order dismissing the action for the failure of the plaintiffs to comply with the prior order made by Judge Butler. This application was denied by Judge Carpenter. He interpreted the order of Judge Butler, requiring the plaintiffs to pay the judgment within 90 days, as a continuing one, that carried the cause from the December to the January term of court; that it was not a final judgment, as was that of Judge Mullins; and that the district court of the proper division still had jurisdiction of the cause, and was invested with the authority at the term when, and as it was, exercised by Judge Mullins, to change or modify the same; and that ...