Scott v. Bohe

• Decision Date: 09 May 1927
• Docket Number: 11812.
• Citation: 81 Colo. 454,256 P. 315
• Parties: SCOTT v. BOHE.
• Court: Colorado Supreme Court

256 P. 315

81 Colo. 454

SCOTT v. BOHE.

No. 11812.

Supreme Court of Colorado, En Banc.

May 9, 1927

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action in replevin by Edwin A. Scott against Joseph M. Bohe. To review a judgment for defendant, plaintiff prosecutes a writ of error, and asks that it be made a supersedeas. Defendant joins in asking for final judgment on the application for a supersedeas.

Reversed and remanded.

Benjamin E. Sweet and James A. Marsh, both of Denver, for plaintiff in error.

Rees D Rees and C. E. Wampler, both of Denver, for defendant in error.

BURKE, C.J.

These parties appear here in the same order as in the trial court and we hereinafter refer to them as plaintiff and defendant.

Plaintiff brought replevin to recover a picture. To review a judgment against him he prosecutes this writ and asks that it be made a supersedeas. Defendant joins him in requesting final judgment on this application.

The first question confronting us is, Was this judgment on the merits? Plaintiff says, 'No'; defendant says 'Yes.'

The cause was tried to the court, taken under advisement, and written briefs filed. It was decided October 12, 1926. The record simply recites that the court 'doth find for the defendant.' In so doing the bill of exceptions discloses that the judge said:

'The court regrets that it is not possible, under the pleadings and proof, for it to determine this case upon its merits. It must be determined upon a legal technicality. * * * The plaintiff in this suit did not have the right to the immediate possession of the property at the time the suit was filed because he had made no demand for, and there had been no refusal of, the picture in question. * * * For these reasons the findings are for the defendant, that he is entitled to the possession of the picture in controversy, and he may have judgment for his costs.'

To all of which the plaintiff excepted. October 20, 1926, plaintiff filed a written 'motion to correct findings' for the reason, among others, that 'the findings of fact and conclusions of law are against the law.' At the same time he filed a motion for a new trial. October 25, 1926, both motions were overruled and judgment entered for the return of the picture. In this connection the bill of exceptions discloses the following:

'Mr. Sweet (for plaintiff): If this matter should be taken to the Supreme Court, and there is no finding on the merits, it simply means a new trial of the case. * * *

'The Court: If the Supreme Court would hold in this case that this court was in error; that under the evidence a demand and refusal was unnecessary, then the question would come back for decision by this court upon the other issues raised by the pleadings and evidence. * * * The motion to correct the findings will be overruled and you may have an exception. The motion for new trial will be overruled and you may have an exception to that.'

It thus indubitably appears as a fact that there was no judgment on the merits. But defendant says the record governs as against the bill and the phrase 'doth find for the defendant' is a general finding and must be upheld here if there is any evidence to support it, regardless of anything said by the court to the contrary. The principles invoked to support this contention art:

'A wrong reason will not vitiate a right judgment.'

And:

'The findings which control are the formal findings in the decree, not the discussion of the case by the court from the bench.'

Among the authorities cited to support this position are: McMillan v. Harbert et al., 74 Colo. 161, 219 P. 1070; Stough v. Reeves et al., 42 Colo. 432, 95 P. 958; Ocean A. & G. Corp., Limited, v. Joslin D. G. Co., 27 Colo.App. 52, 146 P. 790. However, each of these was a clear case of judgment in fact on the merits and in each the proposal was to invalidate for a bad reason.

If judgment is on an erroneous conclusion of law and a correct conclusion would require the same result, or on an erroneous statement of fact and a correct statement would require the same result, or on a specific finding in the decree and a contrary statement in the bill would require a different result, the judgment will not be disturbed. Had this record disclosed the court's refusal to find on the facts, no presumption could be indulged that, had he done so, that finding would have been for the same party with whom he held on the law. By the trial court's finding of fact on conflicting evidence we are bound. Here there are no formal findings in a decree and no inconsistency between the bill and the record. The latter discloses a finding for defendant, but whether on law or facts does not specifically appear therefrom. The former discloses a like...