Plattner Implement Co. v. Bradley, Alderson & Co.

• Decision Date: 06 May 1907
• Citation: 40 Colo. 95,90 P. 86
• Parties: PLATTNER IMPLEMENT CO. v. BRADLEY, ALDERSON & CO.
• Court: Colorado Supreme Court

90 P. 86

40 Colo. 95

PLATTNER IMPLEMENT CO. v. BRADLEY, ALDERSON & CO.

Supreme Court of Colorado

May 6, 1907

Appeal from District Court, Arapahoe County; Samuel L. Carpenter Judge.

Action by Bradley, Alderson & Co., against the Plattner Implement Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought on April 6, 1901, in the county court of Arapahoe county on a judgment obtained in the circuit court of Jackson county, Mo. The complaint alleges that appellee (plaintiff below) is an Illinois corporation doing business in Kansas City, Mo., and that appellant (defendant below) is a Colorado corporation doing business in Denver, Colo.; that on October 19, 1900, plaintiff commenced suit against defendant in the circuit court of Jackson county, Mo., and on January 31, 1901, a judgment was therein rendered by said circuit court against the defendant in the sum of $1,566.77 that no part thereof has been paid; and that the same draws interest at the rate of 6 per cent. per annum. An authenticated transcript of the record, in accordance with the act of Congress, was set out in the complaint, and the plaintiff prays for judgment for said sum, with interest and costs. The answer filed in the county court on May 23, 1901 alleges that defendant, at the time of the service of summons in the action in which the judgment herein sued on was obtained, or at any other time, was not doing business outside of the state of Colorado, and that said Missouri judgment was based upon service of summons made on Andrew Plattner, president of the defendant company, while he was temporarily in Kansas City, at the instance of the plaintiff company, and that said Plattner was fraudulently enticed into Missouri in order that plaintiff might get service upon him and thereby compel the defendant company to litigate its differences with plaintiff company in said circuit court of Jackson county, Mo., instead of in the state of Colorado where the defendant was doing business, and where its principal office was located; alleges that at the time the action was commenced said judgment was paid, and defendant was not indebted to plaintiff in any sum whatever; but, on the contrary, plaintiff company was indebted to defendant company. The second, third, fourth, and fifth defenses of said action consist of counterclaims on which defendant demands judgment against plaintiff in the sum of $1,565.40. On May 31, 1901, plaintiff filed its demurrer in the county court to the several defenses set forth in the answer, and on August 19, 1901, filed its reply to the first defense, denying each and every allegation of new matter therein contained. On August 21, 1901, plaintiff filed its petition praying that the cause be set for trial upon the validity of the Missouri judgment, being the issue presented by the complaint, the first defense in the answer, and the reply thereto, and that plaintiff might have 10 days after the determination of the court thereon within which to reply to the second, third, fourth, and fifth defenses contained in the answer, or to take such other steps as it might be advised. This petition was granted, and issue was tried by the county court, and on January 6, 1902, judgment was rendered for defendant. Plaintiff thereupon appealed to the district court, and such appeal was consummated January 15, 1902. On February 27, 1902, plaintiff, by leave of court, filed an amended demurrer to the answer and cross-complaint on the ground that several causes of action had been improperly united. On March 1, 1902, the case was called for trial in the district court. Defendant objected to the trial at that time, or at any time, until the issues of law raised by the demurrer filed on the 27th of February, 1902, had been passed upon and disposed of. These objections were overruled. Thereupon the district court granted plaintiff's petition theretofore filed in the county court on August 21, 1901, and in the district court on January 15, 1902, asking that the issues raised by the complaint, the first defense in the original answer, and the reply thereto, be tried separately. Thereupon evidence upon this issue was introduced, and on April 2, 1902, the court announced that it found said issues, so joined by the first defense in the answer and the reply thereto in favor of plaintiff.

On May 26, 1902, nearly three months after these issues had been tried, the following proceedings were had, to wit: 'At this day come the parties hereto by their attorneys, respectively, and thereupon this cause being regularly reached for hearing according to previous assignment upon the plaintiff's demurrer to the counterclaim and answer of the defendant, the said defendant confesses the demurrer of the plaintiff, and the court sustains said demurrer. Whereupon, on motion of defendant, said defendant is allowed to file his amended answer herein instanter, which is accordingly done.' The amended answer so filed on the 26th day of May, 1902, consists of a first defense of specific denials of most of the allegations of the complaint, and denials for want of information of all other allegations, except the jurisdiction of the county court and the incorporation of defendant; of a second defense, alleging fraudulent service of summons made after the plaintiff had enticed Mr. Plattner, president of the defendant company, into the state of Missouri; of a third defense, alleging that defendant company was not doing business in the state of Missouri, and that Mr. Plattner, the president of the defendant company, was but temporarily in Kansas City, Mo., on the 1st of November; of a fourth defense, a fifth defense, a sixth defense, and a seventh defense, which respectively consist of counterclaims alleged to be existing in favor of defendant and against plaintiff, a foreign corporation; of an eighth defense, alleging the failure on the part of plaintiff to have complied with section 10, c. 52, p. 121, Sess. Laws 1901, on account of which neglect it had no standing in court, and could not prosecute the action; of a ninth defense, which was subsequently withdrawn. On May 27, 1902, plaintiff filed a motion to strike the first, second, and third defenses from the amended answer on the ground that they were substantially the same defenses as were averred in defendant's first defense in its original answer, and upon which issues were joined, evidence submitted, and a judgment rendered. On the same day plaintiff filed a demurrer to the fourth, fifth, sixth, and seventh defenses in the amended answer. The grounds of the demurrer to the fourth defense were: (1) That it did not state facts sufficient to constitute a defense or a counterclaim; (2) that it was improperly united with the first, second, and third defense; (3) that it is unintelligible and uncertain--and also demurred upon the same ground to the fifth, sixth, and seventh defenses, respectively. On the same day (May, 27, 1902) plaintiff filed a reply to the eighth and to the ninth defense. On May 29, 1902, plaintiff filed a motion to strike the amended answer from the files, and for judgment on the ground that defendant had not complied with section 10, c. 52, p. 121, Sess. Laws 1901, and therefore should not be permitted to defend or prosecute its counterclaims. On June 5, 1902, the defendant filed a general demurrer to plaintiff's replication to the eighth defense, and withdrew its ninth defense. On September 12, 1902, the district court overruled defendant's demurrer to plaintiff's replication to the eighth defense, and struck out said eighth defense; overruled plaintiff's motion to strike the amended answer and for judgment; sustained plaintiff's demurrer to the fourth, fifth, sixth, and seventh defense of defendant's amended answer; granted plaintiff's motion to strike the first, second, and third defenses of the amended answer; and on motion of plaintiff ordered a judgment to be entered in favor of plaintiff for the sum of $1,719.53 in accordance with its previous findings. And thereupon judgment was entered for the plaintiff for the sum aforesaid. From the judgment defendant appeals.

John M. Waldron, R. D. Thompson, and C.J. Blakeney, for appellant.

J. M. Ellis and Warwick M. Downing, for appellee.

GODDARD, J. (after stating the facts).

The first ground relied on in argument for a reversal is the action of the court in proceeding with the trial of the issue as to the validity of the Missouri judgment, while the demurrer to the answer and cross-complaint for misjoinder of causes of action, filed February 27, 1902, was still pending. The court ruled that plaintiff, by noticing the equitable issue for trial, waived its demurrer and its right to further object that several causes of action were improperly united in the answer and cross-complaint. Counsel for defendant contends that the waiver was not complete until the trial commenced. While this difference is of no substantial significance, we agree with the view of the trial court that the plaintiff, by noticing this issue for trial on its merits, waived its demurrer and the issues of law presented thereby, and its right to object to the answer and cross-complaint on the ground of misjoinder. We are unable to see wherein the defendant was prejudiced by this ruling, which was clearly in its favor. We do not understand that the objection to proceeding with the trial of the issue mentioned was based upon the ground that demurrers to the other defenses were pending and undisposed of, but because of the pendency of the demurrer for misjoinder filed February 27, 1902.

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