Shreve v. Cheesman

Decision Date02 September 1895
Docket Number560.
Citation69 F. 785
PartiesSHREVE et al. v. CHEESMAN et al.
CourtU.S. Court of Appeals — Eighth Circuit

Thomas M. Patterson and Charles C. Parsons, for plaintiffs in error.

Tyson S. Dines (Charles J. Hughes, Jr., on the brief), for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

Does section 272, c. 23, of the Colorado Code of Civil Procedure of 1887, require the defeated party, in an action to recover the possession of real property to pay the costs of a prior mistrial of the action, in which the jury has disagreed, to entitle him to a new trial as of right under that section? If so, do the facts that the circuit court in which the action was pending had, several years prior to his application decided that this section did not require such payment, and that the defeated party complied with the provisions of that section as it had been construed by that court, relieve him from the consequences of his failure to comply with the terms of the section as properly construed? These are the principal questions presented by this record.

The defendants in error, Walter S. Cheesman and George W Clayton, brought an action in the court below against the plaintiffs in error, James A. Shreve, J. A. Perkins, and others, for the possession of certain real property, and for damages for the removal of minerals therefrom. Issues were joined, the action was tried, and the jury disagreed. At the May term of the circuit court in 1893 the action was tried again, a verdict was returned, and on June 27, 1893, a judgment was rendered in favor of the defendants in error. Section 272 of the Code of Civil Procedure of Colorado provides:

'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.' On November 3, 1890, in Parkhurst v. Price, [1] the resident district judge and acting circuit judge of the district of Colorado delivered an opinion, in which he held that a party who was finally defeated in an action for the recovery of possession of real property was not required to pay the costs of a prior mistrial of the action in which the jury had disagreed, in order to entitle him to a new trial under this section. In accordance with this ruling, the plaintiffs in error paid all the costs in this action, except the costs of the mistrial, and on November 2, 1893, before the term next succeeding the entry of the judgment, applied for a new trial under this section. It so happened that the district judge of another district was then temporarily holding the circuit court in the district of Colorado. He heard this application, took it under advisement and on May 26, 1894, denied it, on the ground that the defendants in error had failed to pay the costs as required by law. On November 23, 1894, the plaintiffs in error sued out the writ of error in this case to reverse this order denying the new trial.

A motion was made by the defendants in error to dismiss this writ because the plaintiffs in error had, on June 26, 1894, sued out of the supreme court of the United States a writ of error to reverse the judgment in this action, on the ground that the court below had no jurisdiction of the case. The order denying the new trial, which the statute granted as a right, is a final decision that is reviewable in this court under the act which established it. 26 Stat. 828, c. 517, Sec. 6; Supp.Rev.St. p. 903, Sec. 6; Standley v. Roberts, 8 C.C.A. 305, 308, 59 F. 836; Iron Silver Min. Co. v. Mike & Starr Gold & Silver Min. Co., 6 C.C.A. 180, 56 F. 956; Mining Co. v. Campbell, 10 C.C.A. 172, 61 F. 932. The fact that the plaintiffs in error are exercising a right, given to them by the same act of congress, to the decision of the supreme court upon another question in this case, is no reason for us to deprive them of their right to a hearing and determination of the question committed to our decision by that act. The fact that our writ of error was not issued until after the supreme court had issued its writ is not material. The question before the supreme court arises upon proceedings anterior to the judgment, and the question before this court upon proceedings subsequent to the judgment, so that the requisite records, as well as the questions before the two courts, are different, separate, and distinct.

The fact that the bill of exceptions was certified after the writ of the supreme court issued is not a fatal objection to the bill. It was made and certified during the term at which the order denying the new trial was made. It contains a record of the facts disclosed at the hearing which resulted in that order. The fact that a writ of error had been issued to review the judgment certainly did not deprive the court below of its jurisdiction, or relieve it of its duty, to make a true record of the proceedings in that court after the judgment. This bill of exceptions is that record. It was rightfully made, and is properly in this case for our consideration. Hunnicutt v. Peyton, 102 U.S. 333, 353, 354. The motion to dismiss is denied.

Section 272 of the Colorado Code, supra, gives to the party against whom a judgment for the recovery of real property is rendered a right 'to pay all costs recovered thereby,' and then to have a new trial of the action. The statutes of Colorado provide:

'If any person shall sue in any court in this state in any action, real, personal, or mixed, or upon any statute for any offense or wrong immediately personal to the plaintiff, and shall recover any debt or damages in such action, then the plaintiff or demandant shall have judgment to recover against the defendant his costs to be taxed; and the same shall be recovered, together with the debt or damages, by execution, except in the cases hereinafter mentioned.' 1 Mills' Ann.St.Colo. 1891, § 677.

In the case at bar the defendants in error recovered a judgment for the possession of certain real property for $28,957.15 damages, 'and their costs to be taxed. ' Their costs at the mistrial were taxed at the amount of $1,814.81, and the costs of the last trial were taxed at $128.97. The plaintiff's in error paid the latter, but did not pay the former, amount. It goes without saying, at this late day that under section 721, Rev.St., the defendants in error were entitled to recover such costs as were allowed by the statutes of Colorado, in the absence of any act of congress prescribing a different rule. Hathaway v. Roach, 2 Woodb. & M. 63, Fed.Cas.No. 6,213; Ethridge v. Jackson, 2 Sawy. 598, Fed.Cas.No. 4,541. An exhaustive and interesting argument drawn from the history of the allowance of costs to the prevailing party has been made by counsel for plaintiff in error to show that the words 'costs to be taxed,' in section 677, supra, of the Colorado statutes, mean his costs at the last trial to be taxed. This argument is, in substance, that at common law no costs were recovered; that costs were first allowed in A.D. 1278 by the statute of Gloucester (6 Edw.I.c. 1); that in 1800, in Bird v. Appleton, 1 East, 111, the court of king's bench held that under that and numerous ancillary statutes the costs of a mistrial could not be recovered by the party who finally prevailed; that this construction was adopted by the court of common pleas in 1816, in Worcestershire & S. Canal Co. v. Trent & M. Nav. Co., 2 Marsh.C.P. 475; that the state of Colorado has provided that in that state the common law of England, so far as the same is applicable and of a general nature, and all acts and statutes of the British parliament made in aid of or to supply the defects of the common law, prior to the fourth year of James I., which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority, with certain exceptions, not material here (Mills' Ann. St. Colo. 1891, Sec. 4184); that it is a settled rule that whenever a statute of a foreign state is adopted, the construction placed upon it by the judicial tribunals of that state before its adoption is adopted with it, and that consequently the rule declared in Bird v. Appleton and Worcestershire & S. Canal Co. v. Trent & M. Nav. Co., that a prevailing party cannot recover his costs of a mistrial, has become the law of the state of Colorado. The argument is logical and persuasive. It would be entitled to serious consideration if the statute of Gloucester and the acts of parliament that enlarged its scope were actually in force in the state of Colorado. They are not. The statute of that state, which we have quoted, and that alone, measures the rights of parties to costs in this action, and that statute bears about the same relation to the statute of Gloucester that one of Fulton's steamboats does to the modern ocean liner. The statute of Gloucester provided that the demandant might recover against the tenant the costs of his writ purchased, together with his damage, and that the act should hold place in all cases where a man recovered his damage. The statute of Colorado provides that the prevailing party shall recover his costs to be taxed. It is plain that the construction placed upon the former statute could be of very little value as a guide to the proper interpretation. Its language is simple and plain. 'His costs to be taxed' cannot mean less than all his costs in the action to be taxed. The moment an...

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