Phillips County Court v. People ex rel. Chicago, B. & Q.R. Co.

• Decision Date: 02 June 1913
• Parties: PHILLIPS COUNTY COURT v. PEOPLE ex rel. CHICAGO, B. & Q. R. CO.
• Court: Colorado Supreme Court

133 P. 752

55 Colo. 258

PHILLIPS COUNTY COURT v. PEOPLE ex rel. CHICAGO, B. & Q. R. CO.

Supreme Court of Colorado

June 2, 1913

Rehearing Denied July 7, 1913.

Error to District Court, Phillips County; H. P. Burke, Judge.

Writ of review by the People, on relation of the Chicago, Burlington & Quincy Railroad Company, to review a judgment of the County Court of Phillips County in favor of J. W. Webermeier against relator. From a judgment of the district court annulling the judgment of the county court, the latter brings error. Reversed.

C. D. Walrod, of Holyoke, and E. T. Wells, of Denver, for plaintiff in error.

E. E Whitted and Robert H. Widdicombe, both of Denver, for defendant in error.

WHITE J.

In a certiorari proceeding the district court annulled a judgment of the county court of Phillips county, rendered in favor of J. W. Webermeier against the Chicago, Burlington & Quincy Railroad Company for damages sustained by reason of fire set out by the defendant in the operation of its railroad. The cause is brought here for review. It is contended that district courts have no jurisdiction to issue the writ to review proceedings of county courts in cases of this character; but, if such jurisdiction does exist, petitioner nevertheless, had a plain, speedy, and adequate remedy at law, and that the county court in no wise exceeded its jurisdiction or abused its discretion in the premises. We shall not determine whether the writ of certiorari properly issued in this case, as the judgment of the district court must be reversed and that of the county court affirmed, even though we should assume jurisdiction in the former court to issue the writ.

It is elementary that when a writ of this character is granted upon a proper petition, and the inferior tribunal certifies its record in response thereto, the limit of the power of the reviewing court is to ascertain from that record alone whether the inferior tribunal regularly pursued its authority, and thereupon pronounce judgment accordingly. Section 337, Code Civil Proced. 1908; County Court v. Eagle Rock Co., 50 Colo. 365, 115 P. 706; Morefield v. Koehn, 53 Colo. 367, 127 P. 234. Instead of confining itself to such limitations, the district court apparently determined the controversy from the allegations in the petition and an affidavit contradicting the certified record.

The certified record shows, and it is conceded, that the county court had jurisdiction of the subject-matter of the litigation and of the parties thereto. The suit was commenced October 19, 1909. November 6th thereafter defendant interposed a motion to make the complaint more specific. This motion was overruled on March 14, 1910, at the regular January term of court, and defendant given four days in which to plead. On March 15, 1910, the defendant filed a general demurrer transmitting the same by mail; thereafter, on the same day, the demurrer was heard in open court, overruled and defendant given 24 hours from 2 p. m. of that day in which to plead. By telegram the defendant was apprised of the action of the court in the premises. Within the time so allowed the defendant filed an answer in the nature of a general denial, transmitting the same by mail. Thereafter, on March 16, 1910, at 3 p. m., the case was called for trial and heard before a jury, resulting in a verdict and judgment for plaintiff; the record reciting, inter alia, that the cause had been entered upon the calendar and came on regularly for trial, the plaintiff appearing in person and by counsel, and, the defendant failing to appear and make further defense, the case was regularly called and, at the request of the plaintiff, brought to a hearing. On April 20, 1910, at the ensuing term of court, the defendant, under section 81, Code of Civil Procedure, R. S. 1908, filed a motion to vacate the judgment upon the grounds that it had been entered prematurely, in vacation, and without notice or knowledge upon the part of defendant. The motion was supported by the affidavit of one of the counsel for defendant. Counter affidavits were filed, a hearing had, and the motion determined adversely to defendant. The court in its findings and judgment thereon stating, inter alia, that 'this court was regularly in session for the trial of jury cases on March 15 and 16, 1910, and at the time the decree complained of was rendered; that a jury regularly impaneled was in attendance upon the session of said court; that counsel for defendant had actual notice that said court would be and was in session,' etc.

The finding and declaration of the county court entered at the time of the trial, and in disposing of the motion for a new trial, are necessarily conclusive upon reviewing courts in proceedings of this character. Such courts cannot disregard the unequivocal statements of the record. The claim that the cause was tried without having been previously set down for trial, and without knowledge upon the part of defendant that it...