San Miguel Consolidated Gold Min. Co. v. Bonner

• Decision Date: 06 March 1905
• Citation: 79 P. 1025,33 Colo. 207
• Parties: SAN MIGUEL CONSOLIDATED GOLD MIN. CO. et al. v. BONNER.
• Court: Colorado Supreme Court

79 P. 1025

33 Colo. 207

SAN MIGUEL CONSOLIDATED GOLD MIN. CO. et al. v. BONNER.

Supreme Court of Colorado

March 6, 1905

Appeal from District Court, San Miguel County; Thereon Stevens Judge.

Action by the San Miguel Consolidated Gold Mining Company and another against Levi Bonner. From a judgment for defendant plaintiffs appeal. Affirmed.

Story & Story and Allen & Steigmeyer, for appellants.

R. H Wilson, for appellee.

CAMPBELL J.

The dispute is over a strip of mining ground claimed by plaintiffs and appellants as a parcel of the Happy Home placer, and by defendant (appellee) as a part of the Loopton lode mining location. The owner of the lode claim first applied for a patent, and appellants, as owners of the placer, filed in the United States Land Office their protest or adverse claim against the same, and seasonably brought this action in its support. Trial was to the court and jury, and a verdict was returned for defendant on which judgment was rendered, and plaintiffs are here with this appeal, urging, as grounds for reversal, alleged erroneous rulings below, to the consideration of which we now proceed.

1. In his opening statement to the jury, counsel for plaintiffs, after stating to the jury that they were to take the law from the court in instructions that would be given at the close of the trial and before argument, proceeded to state the law applicable to the case, as he understood it, for the alleged purpose of giving to the jury his theory of the case, so that they might be the better enabled to appreciate and apply the facts as they were elicited during the trial. To this course defendant objected, in which he was sustained by the court. In support of plaintiffs' exception to the ruling, they insist that a plaintiff's counsel has the absolute right to state to a jury in his opening address, not only the case as made by the pleadings, and the evidence by which he proposes to sustain it, but that he may also state so much of the law as, in his judgment, is necessary to enable him to convey to the jury an intelligent idea of the force, effect, and bearing of the testimony in the case. To this are cited: Fosdick v. Van Arsdale, 74 Mich. 302, 41 N.W. 931; Prentis v. Bates, 93 Mich. 234, 53 N.W. 153, 17 L.R.A. 494; McDonald v. People, 126 Ill. 150, 18 N.E. 817, 9 Am.St.Rep. 547; 2 Enc. Pl. & Pr. 706. To the contrary, appellee cites: Giffen v. Lewiston (Idaho) 55 P. 545, 549; Hill v. Colo. Nat. Bank, 2 Colo.App. 324-329, 30 P. 489; Felt v. Cleghorn, 2 Colo.App. 4-8, 29 P. 813; Pickett v. Handy, 5 Colo.App. 295, 38 P. 606. The respective contentions are substantially sustained by some of these authorities. Whatever the practice may be in other jurisdictions, our Code, § 187, in prescribing the order of trials by jury, provides that after the jury is sworn, unless for good cause shown the court otherwise directs, the proceeding shall be: 'First--The party on whom rests the burden of the issues may briefly state his case, and the evidence by which he expects to sustain it. Second--The adverse party may then briefly state his defense, and the evidence he expects to offer in support of it.' These clauses confer upon respective counsel no authority, in opening, to state the law of the case to the jury. Subdivisions 6 and 7 of the same section require the court to give instructions upon the law after the evidence is closed and before argument is begun, which may in all cases be read to the jury and commented on by the attorneys in argument, and, if requested by either party or the jury, may be taken by the latter in their retirement. Ample provision is thus made for counsel, at a certain stage in the progress of the trial, to read to the jury and comment upon the law of the case, which the jury must take from the court. The mere fact that the court does not allow counsel in his opening to exercise the statutory right here given, and before he could know what the court would declare the law to be, instead of in his argument at the close of the case, where the Code says it shall be enjoyed, is not something of which a party may complain. In other words, since the Code has declared what a party may state to the jury in his opening, he may not, as of right, make any statements other than those specially permitted. Furthermore, the right of counsel here asserted, if it exist at all, does not, as already said, spring from statute. Practice and procedure, outside of statutory provisions, are so largely within the sound discretion of trial courts, and the conduct of trials, and the latitude to be allowed counsel, are so largely within their control, that, except for illegal or gross abuse of discretion, their action with respect thereto should be upheld. McClure v. Sanford, 3 Colo. 514, 518. From the brief reference found in the abstract, we do not believe that any prejudice could have resulted to plaintiffs by reason of the refusal of the court to permit their attorney to state to the jury the law of the case in the opening remarks.

2. At the trial plaintiffs sought, by oral testimony, to show the actual situs of one of the corners of the placer location, to which objections were made by defendant on the ground that the location certificate which had not then been offered, was the best evidence thereof, and its production was a condition precedent, and the court sustained the objection. Plaintiffs now assert that this was prejudicial error, because there was a latent ambiguity in the location certificate which made this oral testimony competent and admissible. They say that, in case of conflict or doubt or ambiguity, monuments and boundaries are paramount to courses and distances as written in the location certificate, to which a number of Colorado cases, including Pollard v. Shively, 5 Colo. 309, are cited. Unquestionably, this is true, but the order of proof is largely in the discretion of the trial court, and, until the location certificate was offered in evidence, it was not possible to say that there was a conflict between the monuments and the boundaries and the courses and distances mentioned therein, or that there was a latent ambiguity in the description which made necessary or proper the production of oral evidence to remove the same. There was no error in this ruling. Aside from this, we gather from the abstract that at a later period in the trial, after the production by plaintiffs of the location certificate, opportunity was thereby afforded plaintiffs to submit their oral proof.

3. The defendant offered in evidence the original location certificate of the Loopton location, and afterwards an amended certificate. Plaintiffs say now that the original certificate was void for uncertainty and indefiniteness in description, and its admission improper for any purpose, and, since the original was void, the admission of the amended certificate was erroneous. The record fails to show an objection to the introduction of these certificates upon any ground. It is too late now for counsel to say that they were improperly admitted. But if the objection had been seasonably made, and exception taken below, it could not now be considered, because the abstract does not purport to set forth in haec verba, or otherwise, or even...