Silver Mountain Mine Co. v. Anderson

• Decision Date: 03 July 1911
• Citation: 51 Colo. 298,117 P. 173
• Parties: SILVER MOUNTAIN MINE CO. v. ANDERSON.
• Court: Colorado Supreme Court

117 P. 173

51 Colo. 298

SILVER MOUNTAIN MINE CO. v. ANDERSON.

Supreme Court of Colorado

July 3, 1911

Appeal from District Court, Clear Creek County; Flor Ashbaugh Judge.

Action by Axel F. Anderson against the Silver Mountain Mine Company a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

E. M Sabin, for appellant.

John J. White, for appellee.

HILL, J.

Appellee brought suit in the county court of Clear Creek county against appellant to recover upon several causes of action the first of which was for goods, wares, and merchandise alleged to have been sold and delivered to it by him at its request. The others were for accounts assigned to him, some of which were for merchandise alleged to have been sold and delivered to the defendant, and others for work and labor performed for it at its request. The defendant denied the allegations of the complaint. A trial to a jury resulted in a verdict and judgment for the plaintiff; the defendant appealed to the Court of Appeals, which action was later transferred to this court, and the judgment reversed, and the cause remanded for a new trial. 41 Colo. 123, 92 P. 226. Thereafter, on November 23, 1907, by stipulation of the attorneys in open court, the cause was set for trial December the 14th. On December 2d by stipulation of counsel, that order was vacated. On the 27th of the following January, by stipulation of counsel in writing, the cause was again set for trial for February 5th following, on which date the defendant, by its counsel, in open court, obtained leave to file a written traverse to plaintiff's amended affidavit in attachment. The record shows that counsel for the plaintiff appeared specially for the sole purpose of resisting this application. The record then reads: 'And, now, again, on this 5th day of February, A. D. 1908, this matter coming on for trial according to previous assignment, whereupon comes said defendant, by its attorney, E. M. Sabin, Esq., the plaintiff not appearing either in person or by his attorney, whereupon, on motion of said defendant it is ordered by the court that this cause be and the same is hereby dismissed at the costs of the said plaintiff to be taxed. And the attachment herein released and let execution issue.' Following this, on the same date, the record reads: 'And now again on this 5th day of February, A. D. 1908, come the said parties by their respective attorneys; and thereupon this cause coming on to be heard upon the motion of said plaintiff to set aside the judgment herein and for a new trial of this cause is argued by counsel, and the court being now sufficiently advised in the premises doth deny said motion.' On the same date the plaintiff prayed, and was granted, an appeal to the district court; bond was fixed, furnished, etc. The defendant filed the following motion in the district court: 'Comes now the defendant herein, by E. M. Sabin, Esq., its attorney, and moves the court that the above-entitled cause be dismissed for the following reasons, to wit: (1) That the court has no judisdiction of either the parties or the subject-matter. (2) That the plaintiff had no right, power or authority to take an appeal from the county court of Clear Creek county to this court.' This motion was denied; the cause was tried to a jury, upon the pleadings as filed in the county court. The defendant, by its counsel, participated in the cross-examination of witnesses, the offering of instructions to the jury, the arguments, and had admitted in evidence certain exhibits offered and received in connection with his cross-examination of the plaintiff's witnesses, although the defendant did not offer any direct evidence upon its own behalf. The judgment was in favor of the plaintiff; the defendant appeals.

But two assignments of error are urged. The first is that the district court should have granted the motion to dismiss the appeal and was without jurisdiction to proceed to a trial of the cause. The appellant's contention is that no final judgment was entered in the county court and the district court acquired no jurisdiction to hear or try the case. It is urged that the order of the county judge was interlocutory, from which no appeal would lie; that plaintiff had the right to bring another suit; that the order of dismissal in the county court was not a judgment upon the merits; that the dismissal amounts to a voluntary nonsuit, from which no appeal will lie. The appellant is not in a position to urge this contention, and it is unnecessary to pass upon it. Its appearance by its motion to dismiss the appeal in the district court was not limited to that purpose, it was in the nature of a general appearance; when that motion was overruled, it continued such appearance, and, by its counsel, tried the case upon its merits, cross-examined witnesses, introduced documentary evidence, offered instructions, filed a motion for a new trial, and in all respects submitted to the jurisdiction of the court, without in any way reserving any rights by special appearance. The district court is a court of general jurisdiction, and if the appellant is correct in its contention, having failed to rely on its rights, it is precluded from contesting the jurisdiction of the district court, having once submitted itself to its jurisdiction, it cannot again challenge it at pleasure. To permit it to contend, first, that the court had no jurisdiction and thereafter to give the court jurisdiction by proceeding with the trial of the cause and then when the judgment is ascertained to be adverse to its contention to permit it to again raise the question of jurisdiction, would be trifling with the court. The district court has jurisdiction of appeals from the county court and of the parties in such actions generally. It is not claimed that the county court did not have jurisdiction of the parties to the action, nor of the subject of the controversy. Eliminating the question of the regularity of the appeal, the defendant, by its actions, elected to proceed with the trial of the cause and did so. Having done so it cannot now be heard to complain and be allowed the privilege, after ascertaining the result, to elect to have the benefit of the two positions which are inconsistent with each other. Smith et al. v. District Court, etc., 4 Colo. 235; C. C. R. Co. v. Caldwell, 11 Colo. 545, 19 P. 542; Schoolfield v. Brunton et al., 20 Colo. 139, 36 P. 1103; Cunningham v. Bostwick, 7 Colo.App. 169, 43 P. 151; Fairbanks, Morse & Co. Macleod et al., 8 Colo.App. 190, 45 P. 282.

The second contention pertains...