Rockwell v. Coffey

• Decision Date: 15 October 1894
• Parties: ROCKWELL v. COFFEY et al.
• Court: Colorado Supreme Court

38 P. 376

20 Colo. 397

ROCKWELL v. COFFEY et al.

Supreme Court of Colorado

October 15, 1894

Appeal from district court, Boulder county.

Action by H. N. Coffey and others against one Emigh and others, in which Lewis C. Rockwell sought to intervene. From a judgment sustaining a demurrer to intervener's petition, he appeals. Affirmed.

L. C Rockwell, pro se.

Belford & Galloway, for appellees.

HATY, C.J.

Lewis C. Rockwell now seeks to intervene in a certain action heretofore decided by this court, in which the judgment of the district court of Boulder county was reversed, and the cause remanded to that court for further proceedings in accordance with the opinion filed. See Coffee v. Emigh, 15 Colo. 184, 25 P. 83. The decision in Coffee v. Emigh, supra covered three cases between the same parties relating to the same subject-matter. The particular case in which this intervention is filed is referred to in that opinion as 'an action for specific performance.' The facts as they were then disclosed by the record will be found fully set forth in the statement preceding that opinion.

The premises with reference to which a specific performance of a written agreement was then sought by the plaintiffs, Coffey et al., are the same as those to which intervener Rockwell now claims title, and for this reason a further statement of the result of the previous suit is necessary to a proper understanding and determination of the present controversy. The written agreement, a specific performance of the terms of which was then asked, provided, among other things, that the defendants, Emigh et al., should execute to plaintiffs proper deeds of conveyance to a certain portion of the Emancipation Lode, to wit, the first 50 feet north of the south line of the Western Slope Lode. The court, in passing upon the issues then before it, said of this written agreement: It 'seems to us to be certain, fair, reasonable, and just. The parties had entered into and continued in possession of the property in pursuance of its terms for a long time. Both parties are still able to carry out the contract. Plaintiffs are willing so to do. No good reason has been shown why defendants should not be required to perform on their part.' And the judgment was reversed, and the cause remanded for further proceedings in accordance with the opinion. It was supposed at the time that when the case reached the lower court a motion for judgment would be made and sustained, but for some cause, not appearing in the record, it was allowed to slumber in the lower court for upwards of two years, and until after Rockwell had filed his petition of intervention, when plaintiffs moved for judgment in accordance with the former opinion of this court. This motion was not sustained at the time, apparently on account of Rockwell's petition. Plaintiffs thereupon sought to compel by mandamus the entry of judgment in the district court in their favor. This remedy was refused by this court as not available under the circumstances. See People v. Judge of District Court, 18 Colo. 500, 33 P. 162. The petition of intervener, after reciting the history of the litigation between the plaintiffs and defendants with reference to the premises in conflict between the Western Slope and the Emancipation Lodes down to and including the judgments of reversal rendered by this court, alleges that thereafter certain executions issued out of this court at the instance of the plaintiffs and against the defendants. It is then alleged that said executions were directed to the sheriff of Boulder county, and were by that officer levied upon 'all the right, title, and interest which the defendants had in and to the Emancipation Lode, including, to wit, the identical property and premises mentioned in said plaintiffs' amended complaint,' and for which defendants had obligated themselves by the written agreement to execute a conveyance to plaintiffs, a specific performance of which said agreement this court had held that plaintiffs were of right entitled to. It is further alleged that after due notice the sheriff sold the property at public sale to N K. Smith, one of the parties to the former suits, and that before the statutory time for redemption had expired C. C Emigh confessed judgment in favor of A. L. Emigh, both the Emighs also being parties to the record in the main action. Rockwell, the attorney of record for the defendants in those cases, also obtained a judgment by confession against Jackson. It is also alleged that A. L. Emigh and L. C. Rockwell redeemed the property from the execution sale, and received the sheriff's deed therefor. Rockwell, having subsequently obtained a conveyance of the interest from A. L. Emigh, is the sole plaintiff named in the intervention proceedings.

As a general rule, a party will not be allowed to intervene between the trial and the rendition of a judgment. Good practice requires the petition to be filed before the trial is entered upon, and, had the plaintiffs in the main suit exercised proper diligence in following up their victory obtained in this court, Rockwell would have been too late with his intervention, as a new trial was not ordered. Hocker v. Kelley, 14 Cal. 165; Henry v. Elevator Co., 42 Iowa 33. But assuming, for the purposes of the case, that by reason of the laches of the plaintiffs this petition of intervention came in time to warrant consideration upon its merits, and it is clear that...