Smith v. Schlink

• Decision Date: 10 September 1900
• Citation: 15 Colo.App. 325,62 P. 1044
• Parties: SMITH et al. v. SCHLINK. [1]
• Court: Colorado Court of Appeals

62 P. 1044

15 Colo.App. 325

SMITH et al. v. SCHLINK. ^[1]

Court of Appeals of Colorado

September 10, 1900

Appeal from district court, Arapahoe county.

Action by Charles L. Schlink, as administrator of Joseph P. Schlink deceased, against W.H. Smith and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Henry B. O'Reilly, for appellants.

Stuart & Murray, for appellee.

BISSELL P.J.

Whether we consider the interests of the public or the interests of the parties, we must regret our inability to affirm this judgment. The plaintiff has got nothing to which he might not be able to establish his title under proper conditions, and the defendants are prohibited nothing to which they have any apparent claim, yet the record does not warrant the judgment. A decree was entered which cannot be sustained on the bill. We shall dismiss all matters antecedent to the amended complaint. When it was filed it necessarily took the place of all prior pleadings by the plaintiff, and became the substitute for any which he had theretofore filed. For the purposes of the decision, we shall consider it as we must take it after it was emasculated by the withdrawal at the hearing of all claim for damages, and in the light of the reservation then made of the right thereafter to litigate as to the alleged acts of the defendants. This voluntary act of the plaintiff requires us to look at the complaint as if it had been again amended by the striking out of all allegations whereon a cause of action sounding in damages could be predicated. We thereby have the right, and the duty is laid on us, to consider the sufficiency of the pleading thus viewed as a statement of a cause of action, and as warranting the decree which was entered. These matters are sharply presented by the situation. The defendants answered, To the answer the plaintiff demurred. This demurrer was sustained. It is quite clear, as we shall briefly suggest hereafter that the answer set up no defense, unless it may possibly be to such part of the complaint as counted on the matters of trespass and damage. With those eliminated there was in law no issuable matter left in the complaint and no sufficient defensive plea left in the answer. Thus practically, we uphold the judgment sustaining this demurrer. But we go further, as we have the right and are compelled by the law to go, and carry the demurrer back to the complaint, and, when we find it insufficient in the statement of a cause of action, are compelled to reverse the case. Unfortunately it will permit the continuance of the litigation over a claim which was originally a debt of less than $200, which has been heretofore on another appeal before this court, but will leave open only those matters expressly reserved by the judgment,--the action for damages for the alleged wrongful acts and trespasses of the defendants.

To state the case made by the complaint: We shall summarize it in the briefest possible way consistent with clearness. The plaintiff alleged the recovery of a judgment by Joseph P. Schlink against William H. Smith for $197.50, an appeal to the court of appeals, and an affirmance. Pending the appeal Joseph died, and Charles L. Schlink was appointed administrator. On this judgment an execution was sued out, and levied on certain property, which was described. Under the writ certain property was sold; part of it consisting of lots 29, 30, 31, and 32, Case & Ebert's addition to the city of Denver. The statute was observed, the plaintiff in the execution received the usual evidence of title, and on the expiration of the period of redemption the sheriff made a deed for all this land, and delivered it to the attorneys for the plaintiff. With the matter of this delivery we are not concerned, for the complaint proceeds that thereafter William H. Smith and Mary, his wife, began an action against the administrator and the sheriff to restrain the execution and delivery of any deed to the property. The present complaint then sets up the history of that litigation, giving all the pleadings, the subsequent steps, and the ultimate decree. Therefrom it appears that Smith and his wife in that suit set up a cause of action, substantially, that these lots were a homestead, properly preserved as such by due proceedings under the statute, and an occupation. In that bill the plaintiff attacked the process and its legality, assailed the legality of the sale on divers grounds, and prayed the abatement of the levy and general relief. An answer was filed, taking issue on the various matters, alleging the regularity of the proceedings, and setting up further, as affirmative matter, that, so far as concerns lot 29, it was neither part nor parcel of the homestead, but was subject to levy and sale, and that by the procedure the administrator acquired title to at least that part of what was levied on. The case went to trial on these issues, and resulted in a decree finding for the defendants as to lot 29, setting aside the acts of the sheriff with respect to the sale of lots 30, 31, and 32, inhibiting him from issuing or delivering a deed to those lots, and perpetually restraining him from making a conveyance of them, and setting whatever levy he had made aside, and holding it for naught, vesting the title in Smith, free and clear of any cloud on it, and ordering the dissolution of the injunction in so far as it affected lot 29. It was also ordered that the sheriff be restrained from issuing or delivering to the defendant Schlink his deed to lot 29 until a date named, and if at any time prior thereto the plaintiff should pay $280 to the administrator, Schlink, with interest, no conveyance of lot 29 should be made, and in default of payment depriving him of all right of redemption, if he had any, and confirming the title which might pass to lot 29 by the sheriff's deed under this decree. The decree stood. No exception was taken to it, and it was never appealed from, vacated, modified, or altered, nor was any application to that end made by any party to the suit. The plaintiff alleged that the period prescribed by the decree had expired, and there had been no payment or tender of the $280. This is all that the amended complaint filed by Schlink in the present action contains respecting that suit. Just why these matters are stated does not clearly appear, nor are we able to see that the allegation is of any force or value, save as it applies or has reference to the claim for damages to which we shall hereafter refer. If the acts of trespass and damage are eliminated, the irrelevancy of this statement becomes apparent. It probably would be unobjectionable if the plaintiff had proceeded to establish his cause of action as to the trespass or trespasses, but not otherwise.

We now come to the part of the complaint which was practically eliminated or withdrawn by the plaintiff at the time of the final decree. It is better, for the purposes of clearness of statement, and as practically relevant to the main part of our decision, to here state, a little out of its order, what will sustain the court in its position that the ultimate decree was unwarranted, and the complaint insufficient as a statement of a cause of action. The defendants answered the complaint generally, and the plaintiff demurred, and at the time of the argument moved to dismiss all claims for damages. This application was held in abeyance until the decision of the issue of law raised by the demurrer. When the matter was finally considered by the court and it announced its conclusion, the court sustained the plaintiff's motion to dismiss all claims for damages, but the dismissal was without prejudice to any further prosecution of them. From this it is quite apparent that what we shall now state respecting the contents of the complaint which we are compelled to narrate for the purposes of elucidating our conclusion was entirely stricken out of the pleading. Proceeding, after the allegations respecting this antecedent litigation, the plaintiff stated that after the execution and delivery of the sheriff's deed to lot 29 he took possession, with the intent to fix it up and rent it and produce an income, but being without means, simply fastened up the house and looked after it from time to time. The plaintiff then proceeds to allege that after the delivery of the deed the defendants commenced to harass and annoy him by circulating reports decrying his title, and insisting that Schlink had no right to rent or sell it, thus driving away purchasers; that after the plaintiff had taken possession the defendants secretly entered it, and put in a tenant, who occupied one room, thereby attempting to maintain a quasi possession. He then states that he attempted to sell the property to one or two, and that he did sell it, but, when he went to deliver possession, found this tenant occupying one room. The plaintiff then alleged that he took possession of the house by his agents, who were prosecuted before a justice, and, being thus removed from the occupancy, the defendants got in. He then alleges that he afterwards, presumably as he had a right to do, took off the padlock, removed the barricades, put the defendants' stuff in the yard, and resumed possession. He then states that the defendants were still threatening his possession, and they declared they would destroy the dwelling if he occupied it, and he believed this would be done unless they were restrained by injunction. The plaintiff then claimed damages for trespass and for the loss of the enjoyment of the property in the sum of $300. For this sum he demanded judgment, and prayed an injunction to restrain them from interfering with the property and from making any threats or claim of possession, and that the injunction on final hearing...