Schwed v. Hartwitz

• Decision Date: 31 October 1896
• Citation: 23 Colo. 187,47 P. 295
• Court: Colorado Supreme Court
• Parties: SCHWED v. HARTWITZ et al.

47 P. 295

23 Colo. 187

SCHWED v. HARTWITZ et al.

Supreme Court of Colorado

October 31, 1896

Appeal from district court, Lake county.

Action by Pauline Schwed against Joseph Hartwitz and another to recover real estate. There was a judgment in favor of defendants, and plaintiff appeals. Affirmed.

This action was instituted under chapter 23 of the Civil Code of 1887, to recover the north 20 feet of lot 20, in block 4, in St. Louis Smelting & Refining Company's Addition to the city of Leadville. At all times while the action was pending in the district court the following provision of the Code was in force: 'Sec. 272. Whenever judgment shall be rendered against either party, under the provisions of this chapter it shall be lawful for the party against whom such judgment is rendered, his heirs or assigns, at any time before the first day of the next succeeding term, to pay all costs recovered thereby, and upon application of the party against whom the same was rendered, his heirs or assigns, the court shall vacate such judgment and grant a new trial in such case, but neither party shall have but one new trial in any case, as of right, without showing cause. And after such judgment is vacated, the cause shall stand for trial, the same as though it had never been tried. * * *' In the district court three trials were had to the court without a jury. The first resulted in a judgment for defendants. This judgment was set aside, and a new trial granted under that statute, upon the plaintiff's paying the costs. The second trial resulted in a judgment for plaintiff, and a new trial was granted the defendants under the statute. As a result of the third trial, the defendants obtained a judgment, and from this last judgment the plaintiff, Schwed brings the case here by appeal.

A. W. Stone, for appellant. A. J. Sterling, for appellees.

Baldwin & Gunnell, amici curiae.

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

After the second trial, and before the third, plaintiff moved for a writ of restitution, upon the following grounds: (1) Because a new trial was granted upon the payment by the defendants of the costs of the second trial only. (2) One new trial having been granted under the statute, the court was without power to grant another. The first assignment of error is based upon the denial of the foregoing motion. The construction placed by the court upon the statute, as it then existed, was clearly right. It read: 'Whenever judgment shall be rendered against either party, * * * the court shall vacate said judgment, and grant a new trial in such case; but neither party shall have but one new trial in any case, as of right.' This language clearly shows that it was intended to give plaintiff and defendant, each, if unsuccessful, a right to one new trial, upon the payment of costs. This construction is in harmony with the liberal rule adopted by the courts with reference to trials of title to real property, as well as in obedience to the plain intent of the code provision. Since this action was appealed, the Code has been changed in this respect, so that now the first unsuccessful party is alone entitled to a new trial as of course. The order allowing the defendants a new trial upon payment...