Reynolds v. Campling

• Decision Date: 21 September 1896
• Citation: 23 Colo. 105,46 P. 639
• Parties: REYNOLDS v. CAMPLING.
• Court: Colorado Supreme Court

46 P. 639

23 Colo. 105

REYNOLDS v. CAMPLING.

Supreme Court of Colorado

September 21, 1896

Appeal from district court, Otero county.

Action by Mary B. Campling against A. E. Reynolds to remove a cloud from the title of certain real estate. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This action was brought by Mary B. Campling, as plaintiff, for the purpose of removing a cloud from the title of 640 acres of land, situate in Otero county, Colo., and known as 'Indian Claim No. 12,' for which a patent was issued on the 20th day of September, 1870, to one Armama Smith. The plaintiff in her complaint alleges possession and ownership of the land in controversy, and avers that the defendant claims some adverse title or interest therein. The defendant in his answer denies the possession of plaintiff; denies plaintiff's title; alleges fee-simple title in himself and the payment of taxes upon the property for 15 consecutive years prior to the institution of this suit. A trial to the court upon these issues resulted in a decree in accordance with the prayer of the complaint. To reverse this judgment the cause is brought here upon appeal.

Tyson S. Dines and Charles J. Hughes, for appellant.

A. F Thompson and L. B. Gibson, for appellee.

HAYT C.J. (after stating the facts).

Both parties to this action claim title to the premises in controversy under a United States patent. The patentee Armama Smith, is described in the patent as a half-breed Indian, 'who claims (under the fifth article of the treaty concluded October 14, 1865, between the United States and the Cheyenne and Arapahoe tribes of Indians) 640 acres of land.' This treaty, in so far as it is necessary to be considered upon this review, reads as follows: 'Treaty between the United States of America and the Cheyenne and Arapahoe tribes of Indians, concluded October 14, 1865. Ratification advised, with amendments, May 22, 1866. Amendments accepted November 19, 1866. * * * Art. 5. * * * At the special request of the Cheyenne and Arapahoe Indians, parties to this treaty, the United States agrees to grant by patent in fee simple, to the following named persons, all of whom are related to the Cheyennes or Arapahoes by blood, to each an amount of land equal to one section of six hundred and forty (640) acres, viz.: To the children of John S. Smith, interpreter, William Gilpin Smith, and daughter Armama. * * * Said lands to be selected under the directions of the secretary of the interior from the reservation established by the first article of their treaty of February 18, A. D. 1861.' Plaintiff, to establish her title, introduced proof tending to show that Armama Smith, the patentee, died with smallpox in the year 1862, leaving as her sole heir John S. Smith, her father, who died in the year 1871. Plaintiff then introduced various mesne conveyances tending to show her ownership of such interest as may have been inherited by John S. Smith. The defendant claims, and introduced evidence to show, that the patentee, Armama Smith, was still living in 1894, at the time of the trial in the court below, and that she, by her warranty deed, dated and acknowledged on the 16th day of November, 1872, conveyed the premises to the defendant. This deed was duly recorded in the county where the lands were situate on the 28th day of April, 1873. The grantee paid taxes under said deed for the years 1877 to 1889, inclusive. A large number of errors have been assigned; but, as the decree of the district court must be reversed the consideration of several of the assignments of error becomes unnecessary, while others will require but brief consideration.

The first assignment of error discussed brings up for review the ruling denying a continuance asked by the appellant on the 29th of April, 1893, and forcing him to trial on May 15, 1893. This continuance was based upon motion, supported by an affidavit showing that Charles J. Hughes, one of counsel for the defendant, was absent trying an important case in a neighboring state, and that he could not be present at the trial of this cause during the term of the district court of Otero county that was then being held, and at which the cause was subsequently tried; also, upon the claim that a number of defendant's important witnesses were Indians belonging to, and at the time with, roving bands, and for this reason could not be obtained in time for the trial at that term of court. In so far as the absence of counsel is urged, it is sufficient to say that the record shows that the defendant was represented by Mr. T. S. Dines, who was associated with Mr. Hughes, and that Mr. Dines was at all times present when any steps were taken in the cause. Perhaps Mr. Hughes was more familiar with the controversy than Mr. Dines, and for this reason could have been of more assistance to the defendant; but this would not entitle the defendant to a continuance as a matter of law. A large discretion is vested in the trial courts with reference to such matters, and this discretion should be exercised according to the circumstances of each case. In a county having a large population, where the courts are almost constantly in session, such matters can usually be easily arranged without serious inconvenience; but in a sparsely-settled county like Otero, having but two terms of the district court per year, a continuance for a few days may carry the case beyond the term, and a continuance of six months or more would in many cases work a great hardship to at least one of the parties to the controversy. When a continuance is asked on account of the necessary absence of counsel, and the granting of the same will work no particular hardship to the other side, courts should, and usually do, grant the indulgence; but the discretion of the trial courts in these matters will only be interfered with in case of gross abuse, and we do not think this is such a case. As there was no showing made as to the absent witnesses, the motion for a continuance was properly overruled, although we think that the interests of all parties would have been better subserved if a continuance had been granted, thereby enabling both parties to have fully presented the facts which are essential to a correct adjudication.

This action having been instituted under section 255 of our Civil Code, it was necessary for plaintiff to allege and prove her possession at the time this action was begun, this allegation having been put in issue. Bank v. Newton, 13 Colo. 245, 22 P 444; Wall v. Magnes, 17 Colo. 476, 30 P. 56; Walker v. Pogue, 2 Colo.App. 149, 29 P. 1017. The district court found this issue in favor of plaintiff, and this is made the basis of one of the assignments of error. The evidence shows sufficient possession on the part of pl...