Rensberger v. Britton

• Decision Date: 12 January 1903
• Citation: 71 P. 380,31 Colo. 79
• Parties: RENSBERGER v. BRITTON.
• Court: Colorado Supreme Court

71 P. 380

31 Colo. 79

RENSBERGER v. BRITTON.

Supreme Court of Colorado

January 12, 1903

Appeal from district court, Bent county.

Action by William Rensberger against T. D. Britton. Judgment dismissing plaintiff's complaint, and he appeals. Affirmed.

Allen M. Lambright and H. L. Lubers, for appellant.

O. G Hess, for appellee.

CAMPBELL C.J.

This action was brought by appellant, Rensberger, as plaintiff against appellee, Britton, as defendant, to set aside a deed to certain town lots in Las Animas, Bent county, Colo., which the plaintiff says was obtained from him by defendant's fraud. The result of the trial was a dismissal of the action. In a previous action in the same court, but before another judge, Britton had sued Rensberger to set aside as fraudulent and void a deed to the same property, which the former had made to the latter. In that earlier case Rensberger filed an answer, in which he set forth as a defense, and also as a counterclaim, a former transaction concerning the purchase by him of ranch lands whereby Britton had perpetrated a fraud on him. But the court held that the facts thus pleaded did not constitute a defense to the action, and could not be pleaded as a counterclaim, and thereupon rendered judgment in favor of Britton, which we affirmed at this term. Rensberger v. Britton, 71 P. 379. After the decision of the former case by the district court Rensberger brought this action in the same court, setting forth in his complaint as a cause of action the same facts which he had theretofore attempted to plead in his answer in the action brought by Britton against him. In his answer thereto defendant, Britton (appellee), specifically denies every material averment of the complaint, and proceeds to set forth a plea of res adjudicata of the matters set up in the complaint, which plea is evidenced by the judgment affirmed by us in the other case. A replication was filed, which denies certain allegations of the answer that are affirmative in form, but negative in substance, and denies the plea of res adjudicata. To try the issues thus joined a jury was impaneled, whereupon the defendant elected to submit to the court without a jury the issue upon the plea of res adjudicata, and upon the testimony thus submitted the court found in favor of the defendant. The record does not show that any testimony was offered by either party upon the issue raised by the specific denials in the answer of the alleged fraudulent conduct set up in the complaint, and we do not know what verdict, if any, the jury returned upon it. It does appear, however, that, after the evidence was submitted upon...