Price v. Lucky Four Gold Min. Co.
| Decision Date | 01 December 1913 |
| Citation | 136 P. 1021,56 Colo. 163 |
| Parties | PRICE v. LUCKY FOUR GOLD MINING CO. |
| Court | Colorado Supreme Court |
Error to District Court, Pueblo County; C. S. Essex, Judge.
Action by the Lucky Four Gold Mining Company against the American Smelting & Refining Company, which interpleaded John M Price, who was thereupon substituted as defendant. Judgment for plaintiff, and the substituted defendant brings error. Reversed with instructions.
McCloskey & Moody, of Durango, and Charles D. Bradley, of Pueblo, for plaintiff in error.
Joseph Dye, of Pueblo, for defendant in error.
On the 29th day of December, 1911, the Lucky Four Gold Mining Company filed its complaint in the district court of Pueblo county against the American Smelting & Refining Company alleging that on or about the 6th day of December, 1911, the defendant was and is indebted to the plaintiff in the sum of $200 on account of gold, silver, and copper ore sold and delivered by the plaintiff to the defendant at Durango Colo., in Denver & Rio Grande car No. 6034, and known as smelter lot No. 3549, and praying judgment for the amount claimed. On the 27th day of January, 1912, the defendant the American Smelting & Refining Company, acting under section 18 of the Civil Code, and in full compliance therewith, filed a motion for substitution of party defendant, and discharge of the defendant Smelting & Refining Company, together with a stipulation in relation thereto between the plaintiff and the smelting and refining company, defendant. This motion stated, in substance, that the ore in question was delivered to the defendant at Durango by one John M. Price; that its value was $177.63, which sum the defendant was then holding; that the plaintiff has made and is making the demand upon the defendant for the value of the said ore, and that the said Price, prior to the institution of the suit, now and at all times since, has likewise made and still makes, demand upon the defendant for the value of the said ore, and that Price still claims that the said ore was his property, and that he is entitled to the value thereof; that the defendant has no interest in the controversy, except that it desires that the sum of money so held by it may go to the person or party entitled thereto, and tendered the said sum of money into court. This motion was supported by affidavit. The proper notice of the intention to file the said motion with a copy thereof was served upon Price at Durango, La Plata county. On the 7th day of March, 1912, the court entered an order granting said motion of substitution and the discharge of the American Smelting & Refining Company as defendant in the cause, and from liability to either the plaintiff or Price, and substituting Price as the party defendant. This order was to become effective upon the payment of the sum of money, so stated, into court. Price appeared by his attorney and excepted to the making and entering of the order of substitution and discharge. This objection was overruled. Price was then ruled to plead within 30 days and the plaintiff to plead within 30 days after service of a copy of defendant's pleading.
On April 6, 1912, the defendant Price filed his demurrer to the complaint of the plaintiff in the following language: 'The defendant John M. Price, in the above-entitled cause, by his attorneys McCloskey & Moody and C. D. Bradley, without waiving his right to an application for a change of venue herein, demurs to the complaint of the plaintiff in said action upon the following grounds, viz.: (1) That said complaint does not allege and state facts sufficient to constitute a cause of action against defendant.' At the same time Price also filed his motion for a change of venue and upon the grounds as follows: '(1) That the county designated in the complaint herein namely the county of Pueblo, in said state of Colorado, is not the proper county in which, under the law, this action should be tried, such proper county being the said county of La Plata; (2) that this action, in so far as this defendant is concerned, if for anything, is for a pretended conversion, in the county of La Plata, and state aforesaid, of the ores mentioned in the complaint, and this defendant, at the time of the commencement of this action, and for a number of years prior thereto, was, and ever since the commencement of this action has been and now is, a citizen and resident of said county of La Plata, and service of summons, or service of any process whatever, in this action was not and has not been made upon this defendant, or any defendant in the case, in said county of Pueblo; (3) that this action, if maintained, will involve the question of the ownership of the Buckwheat lode mining claim, situated in the California mining district, in said county of La Plata, from which the ores mentioned in the complaint were mined and taken, and the determination of the interests of this defendant and others in said mining claim, and their right to occupy, possess, enjoy, and mine the same, and to have the ores taken therefrom, including the ores in question, as a prior valid mining location made upon the public mineral lands of the United States, held adversely to the plaintiff herein, and as against a pretended right thereto, or a portion thereof, by the plaintiff under and by virtue of a wrongful and pretended relocation and the filing of a pretended amended location certificate of its Lucky Four No. 2 lode claim, dated on or about October 23, 1911, and subsequent to the location of the said Buckwheat lode, whereby its said No. 2 lode claim was made to overlap a portion of the said Buckwheat lode, including a part of the ground from which said ore was taken.'
This motion was supported by affidavits. While the demurrer and motion for change of venue was pending, and on the 12th...
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