Rosebud Min. & Mill. Co. v. Hughes

• Decision Date: 13 February 1912
• Citation: 121 P. 674,21 Colo.App. 247
• Parties: ROSEBUD MIN. & MILL. CO. v. HUGHES.
• Court: Colorado Court of Appeals

121 P. 674

21 Colo.App. 247

ROSEBUD MIN. & MILL. CO. v. HUGHES.

Court of Appeals of Colorado

February 13, 1912

Appeal from District Court, City and County of Denver; John I Mullins, Judge.

Action by the Rosebud Mining & Milling Company against Charles J Hughes, Jr., in which defendant filed a cross-complaint. From a judgment for defendant on his cross-complaint, plaintiff appeals. Modified and remanded, with leave for defendant to enter remittitur.

See also, 16 Colo.App. 163, 64 P. 247.

Denison & Wadley, for appellant.

Gerald Hughes, for appellee.

CUNNINGHAM J.

This case was previously in the Court of Appeals for review, the opinion then rendered appearing in 16 Colo.App. 163, 64 P 247. We quote the following from the very clear statement of facts then existing, made by the late Judge Wilson, who wrote the opinion: "It appears from the complaint that the plaintiff company brought a suit in the United States Circuit Court in Colorado against an insurance company to recover upon a policy for loss by fire. The defendant herein was an attorney for the plaintiff in said suit. Judgment was against the plaintiff. Thereupon it alleges that it employed the defendant to take the case for review to the United States Circuit Court of Appeals; that the defendant agreed so to do, and accepted such employment. The complaint further alleges that the defendant negligently failed to tender the bill of exceptions in the cause within the time allowed by the court, and negligently failed in any manner to sue out a writ of error, or to prosecute an appeal therein, within the time fixed by law for that purpose, or at all, by reason of which plaintiff lost its right to have the cause reviewed by the appellate court. The plaintiff further claims and alleges that at the instance of defendant it paid out the sum of $139 for costs for preparing a bill of exceptions, and that it also paid to defendant, at his special request, the further sum of $200, which he assured him was necessary to defray expenses of taking the case to the higher court. Plaintiff thereupon prayed a judgment for damages suffered by it on account of the alleged negligence of the defendant in an amount sufficient to cover the amount of the policy of insurance which it claimed it would and should have recovered if the case had been reviewed by the appellate court, and also costs, and the aforesaid sums of $139 and $200 paid to the defendant by plaintiff. Defendant demurred to the complaint on the single ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and, the plaintiff electing to stand upon its complaint, judgment was rendered in favor of defendant." It is only necessary to supplement this statement by setting forth what has subsequently occurred, to wit, that upon a retrial of the cause the district judge directed a verdict against plaintiff, and entered judgment thereon. The errors complained of on the second trial, and brought here for review, will appear in the opinion.

1. Assuming (because of the conflict in the evidence on that point) that defendant agreed with plaintiff to perfect and prosecute an appeal from the judgment of the federal court, defendant here contends that it would be necessary for plaintiff to establish by the evidence (a) that, had defendant perfected the appeal, the judgment of the federal court would have been reversed, and (b), the case being so reversed in the Circuit Court of Appeals, the judgment, on a retrial, would have been favorable to plaintiff. Neither in brief nor on oral argument has plaintiff taken issue with defendant on this point, and while no authorities have been called to our attention to sustain this rule, nor have we found any directly in point, the following cases tend to sustain the contention: Pennington v. Yell, 11 Ark. 212, 52 Am.Dec. 262; Harter v. Morris, 18 Ohio St. 492; Fitch v. Scott, 3 How. (Miss.) 314, 34 Am.Dec. 86, note page 95.

The conclusions reached by the learned judges of the federal and the district courts that plaintiff failed to make out a case against the insurance company are supported by the opinion of the Supreme Court of California in Parrish v. Rosebud M. & M. Co., reported in 140 Cal. 635, 74 P. 312, wherein a companion policy held by appellant at the time of the destruction of its property was involved. For us to hold that an appeal from Judge Hallett's opinion would have resulted in a judgment favorable to appellant would amount in effect to the reversal of a federal, a state supreme, and two trial courts--a responsibility we would hesitate to assume, even had appellant placed before us the entire record of the proceedings in the federal court, which it has failed to do.

2. After the disposition of the first appeal in this case, and the cause had been remanded, defendant filed an answer and a cross-complaint in the district court, wherein he claimed $1,000 for services rendered in the insurance case in the federal court. This cross-complaint the defendant styled "For a Fifth Defense and Counterclaim." To the answer and the fifth defense the plaintiff replied, the replication being in the main a general denial, closing, however, with a paragraph reading as follows: "And for a second replication to said fifth defense this plaintiff says that the said so-called fifth defense does not state facts sufficient to constitute a defense or counterclaim." Almost three years after the filing of this replication, and in the midst of the trial of the case, plaintiff's counsel insisted upon being allowed to argue this demurrer. This privilege was granted by the trial court, and the demurrer was overruled. Thereupon plaintiff's counsel insisted upon the right to plead over in all respects as though he had in apt time filed nothing but a general demurrer, and the same had been adversely ruled upon. He then and there tendered what he termed an amended replication to the counterclaim, in which he raised the statute of limitations, and nothing else. This the court permitted him to file, remarking: "I will take that matter up latter. I will permit it to be filed." By the remark it seems the court meant that he would take up later the contention of the defendant that the plaintiff had no right to plead the statute of limitations at that time. Later on in the trial defendant again called the so-called amended replication to the court's attention, and moved that it be stricken from the files, which motion was granted. Upon the action of the trial court in striking the so-called amended replication or answer to the cross-complaint error is assigned. While it is true that the Code provides that ...