Sieber v. Frink
| Decision Date | 18 January 1884 |
| Citation | 7 Colo. 148,2 P. 901 |
| Parties | SIEBER and others v. FRINK and others. |
| Court | Colorado Supreme Court |
Where application is made and granted for filing an answer, after the statutory time for filing has expired, no default having been entered by the plaintiff, there is no irregularity upon which the judgment should be reversed.
Chancery cases presenting equitable questions only must be tried to the court unless both parties consent to a trial by jury; the court, of course, having the right to submit issues of fact should they arise, to a jury or referee.
The court may try the case upon evidence reduced to writing by a referee, and upon the pleadings, the arguments of counsel thereon first being heard.
A judgment is complete when properly declared, and is not affected by the fact that the clerk does not enter it till vacation.
A failure to use for a time is competent evidence on the question of abandonment of a water right, and, if unreasonably continued, may fairly create a presumption of intention to abandon, which may, however, be rebutted.
One of the esential elements of a valid appropriation of water is its application to some useful industry, and, to acquire a right thereto, it must, within a reasonable time, be employed in the business for which the appropriation was made.
Evidence as to the priority of conflicting water rights considered and the judgment of the lower court reversed.
Appeal from the district court of Custer county.
Blackburn & Dale, for appellants.
A J. Rising, for appellees.
There was no error in allowing the answer to be filed. No default had been entered after the statutory period for answering expired, and it is doubtful if leave of court even was necessary, unless section 75 of the Code may be construed as requiring such leave, for it is said that the office of a default is 'to limit the time during which the defendant may file his answer,' and that 'if plaintiff fail to take a default before trial, it is a favor to the defendant.' Drake v. Davenick, 45 Cal. 463; Manville v. Parks, ante, 212.
Certainly where, as in this case, application is made and leave granted upon terms by order of court, no default having been entered there is no irregularity upon which we would reverse the judgment. This is purely a chancery case; equitable questions only are presented, and equitable relief alone is demanded. The cause must be tried to the court, unless both parties consented to a trial by jury; the court, of course, possessing the right to submit certain issues of fact, had they existed, to a jury or referee. Section 14, p. 122, Sess. Laws 1879. The court in this action submitted no issue to the referee, and the referee assumed no judicial function; he determined no question and reported no finding; he only performed the ministerial duty of reducing the testimony to writing, and returning the same to the chancellor, who then heard the arguments of counsel and tried the case upon the pleadings and the evidence so reported. We think that such cases may be tried upon proofs taken in this way, or upon oral testimony given in open court. We do not understand the chapter on references, or any other provision of the Code, as operating to deprive the court, under the statute above cited, of the power, in cases like this, to direct, upon its own motion, the taking and reporting of evidence in the manner adopted herein, a power which was so fully conceded, and so freely exercised, before that instrument became a law.
The case of Williams v. Benton, 24 Cal. 424, is not analogous; the reference there was to hear the evidence and decide the issue; the opinion considers the compulsory power of the court to authorize a finding and judgment by the referee. Besides, where that opinion was written, the California practice acts contained no such provisions as section 14 above mentioned--a statute which has an important bearing upon this and several other questions connected with the distinction between procedure at law and in equity.
Counsel for plaintiffs in error express a desire to have this court review the case upon its merits and 'determine the rights of the parties so that the proper decree may be made below,' and under the fourteenth and fifteenth assignments of error the argument and answer discuss but one proposition, viz., the validity of a judgment entered in vacation. The question, therefore, which we shall consider under these assignments is whether a judgment regularly rendered by a court in the transaction of its judicial business may be entered of record in vacation. In Stearns v. Aguirre, 7 Cal. 443, cited, the clerk attempted to enter a judgment in vacation when it was neither rendered by a court nor pronounced by law. Such a judgment is, of course, void; it is an attempt by a mere ministerial officer to perform judicial duties. The case is not in point upon the question above stated. The pronouncing of judgment is a judicial act; that entry of record thereof is a ministerial duty. The judgment is complete when properly declared, though the mechanical act of recording the same has not been performed. In jury trials our Code directs the clerk to discharge this duty within a specified time after verdict, but if he fails or neglects to do so within the statutory period the judgment itself, being pronounced in the verdict, is none the less valid and may still be recorded. The Code does not require the entry to be made in term time, and in no event does the provisions limiting the time apply to trials by the court. The practice of entering judgments in vacation prevailed at common law. Freem. Judgm. (3d Ed.) § 38 et seq. See, also, section 144 of our Code of Procedure.
The remaining assignments of error question the sufficiency of the evidence to support the decree. Upon the principles of law governing the rights of the parties counsel for both sides are in perfect harmony,--a circumstance which is especially gratifying, as the court has no fault to find with the legal doctrines thus agreed upon. The case was tried in the district court mainly upon...
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