Snider v. Rinehart

• Decision Date: 07 January 1895
• Citation: 20 Colo. 448,39 P. 408
• Parties: SNIDER v. RINEHART et al. [1]
• Court: Colorado Supreme Court

39 P. 408

20 Colo. 448

SNIDER v. RINEHART et al. ^[1]

Supreme Court of Colorado

January 7, 1895

Appeal from district court, El Paso county.

Action by George W. Snider against Charles Rinehart and Emma R Austin. From a judgment for defendants, plaintiff appeals. Affirmed.

George W. Snider, appellant, instituted this suit in the district court of El Paso county on January 5, 1893, against Charles Rinehart and Emma R. Austin, as the heirs of Rose Rinehart deceased, to enjoin the enforcement of a judgment at law theretofore and on the 12th day of April, 1888, rendered against appellant in favor of said Rose. The complaint is very voluminous, and, among other things, sets forth the history of the action at law in which the judgment was rendered, and is, in brief, as follows: The complaint filed in that action on or about the 1st day of October, 1886 contained two causes of action. The first, and the only one necessary to be noticed upon this review, averred that she (Rose Rinehart) was the owner in fee and possessed of an undivided one-half of the S.W. 1/4 of section 32, township 13 S., of range 67 W., as tenant in common with the appellant Snider, who was the owner of the other half; that he had ousted her from, and unlawfully withheld the possession of, that part of the premises known as the 'Manitou Grand Caverns.' The appellant, Snider, admitted plaintiff's title to an undivided one-half of the S.W. 1/4 of section 32, township 13 S., of range 67 W., but denied that the Grand Caverns were situate thereon, and alleged that they were situate in the N.E. 1/4 of the S.E. 1/4 of section 31, township 13 S., of range 67 W., of which he was the sole and absolute owner in fee. On the 30th day of November, 1887, the case was tried to a jury, and the sole issue submitted was whether the Grand Caverns were located on section 31 or 32, and the jury found that they were upon section 31. The costs were paid, and a new trial was taken under the statute. On the 12th day of April, 1888, the case was tried again to a jury, upon the same issue, and they found that the Grand Caverns were situate upon and within the limits of section 32; whereupon judgment was rendered in favor of plaintiff in that action, that she have and recover an undivided one-half of the cave in question, and that writ of possession issue placing her in possession. The defendant, Snider, paid the costs, and the case was by the clerk reinstated on the docket, and remained thereon from term to term, until at a special and adjourned term on June 10, 1889, when a motion to vacate the judgment was denied, the case stricken from the docket, and a writ of possession ordered to issue to put plaintiff in possession. From this judgment the defendant prayed an appeal to the supreme court, which was granted; and thereafter, and at the September term, 1892, the judgment of the court below was affirmed. Snider v. Rinehart, 18 Colo. 18, 31 P. 716. Upon the last trial of the cause, the monument or stone marking the north corner of sections 31 and 32 not having been found, it was assumed to be a lost corner, and, there being a shortage or deficiency on the north line of the two sections, the shortage was apportioned, and the corner established, and by such apportionment the caverns in question were shown to be in section 32, and the jury so found. But shortly after this trial, and some time during the month of June, 1888, plaintiff alleges that he by accident discovered the stone marking such corner, in position, where it was placed by the government surveyor at the time of making the original survey, in 1871; and avers that the country around and about said section corner is wild, broken, and mountainous, and very precipitous, the surface of the ground being covered with or made up of broken fragments of stone and rock slag, and that all efforts theretofore made to find the corner were unavailing; and that he had, by the exercise of diligence, been unable to discover its whereabouts in time to produce evidence of its location at the former trial; that by means of such corner the true boundary between sections 31 and 32, as established and subdivided by the United States government, survey, could be readily determined; and that such boundary line shows each and every part of the caverns in question to be entirely and wholly within the boundaries of section 31. While the complaint contains allegations of fraudulent conduct on the part of Rose Rinehart and her representatives, in removing interior corners, no evidence was introduced to sustain such allegations. The appellees, by their answer, deny the material averments of plaintiff's complaint, the validity of this corner, and the manner of its discovery, and the exercise of such diligence on the part of plaintiff as will entitle him to the relief sought. Upon the trial of the cause a large number of witnesses testified, and upon the testimony introduced the court below made the following findings: '(1) That what is termed in the evidence the 'Snider Monument' is the true government corner, as established by the original government survey, and is in the place where it was originally located. This fact is established by a clear preponderance of the testimony, although I cannot say it has been established beyond all doubt. (2) That the plaintiff used reasonable diligence to discover the said monument, and failed to do so, before the trial at law between plaintiff (then defendant) and Rose Rinehart (plaintiff) on April 12, 1888. (3) That under the practice of Colorado it was generally understood, during the years 1888 and 1889, that in an ejectment action, after the first unfavorable verdict, the unsuccessful party could obtain a new trial by simply paying the costs before the next succeeding term of the court, and that this practice was quite generally adopted by the courts and by the bar of the state. (4) By adopting the Snider monument as the true corner for sections 29, 30, 31, and 32, and from that corner drawing the line between sections 31 and 32 to the township line on the south, it is found that the caverns in controversy in this suit will be in section 31. It may be proper to add that there is no proof whatever to show any fraudulent act by any party in the action at law, nor is there any showing that the trial was not fair and impartial. I am constrained to deny to the plaintiff the relief he seeks in this action, for the reason, briefly stated, that I do not think the facts meet the requirements demanded by equity, when it is sought to overthrow a judgment that is impeached for fraud.'

Goddard J., dissenting.

Thomas, Hartzell, Bryant & Lee and M. F. Taylor, for appellant.

Biddell, Starkweather & Dixon, amici curiae.

Wells, McNeal & Taylor, for appellees.

HATY, C.J. (after stating the facts).

This is a suit in equity to set aside a judgment at law. The properties involved are the Grand Caverns, situate near Manitou, El Paso county, Colo. The suit at law was commenced on the 1st day of October, 1886. In that action the principal, if not the sole, question involved was whether the Grand Caverns are in section 31 or section 32 of township 13 S., of range 67 W. Two trials were had in the original suit,--the first in November, 1887, resulting in a verdict and judgment to the effect that the Grand Caverns were in section 31; the second trial occurred in the following month of April, and resulted in a verdict and judgment awarding the Grand Caverns to section 32. After the second trial the defendants paid the costs, but made no effort, by motion or otherwise, to obtain a new trial until more than one year had elapsed, viz. at the June term, 1889, at which time a motion to vacate the judgment was denied, and the case stricken from the docket. From this judgment an appeal was taken to this court, and the judgment affirmed at the September term, 1892. 31 P. 716. The present action was not commenced until after the fatter judgment was rendered. The controversy for the possession of these caverns had been pending in the courts for six years before the present action was commenced. Since the institution of the first suit two of the defendants have died.

I think it is apparent, from the foregoing statement, that the judgment at law should not be opened in this proceeding except for the most cogent reasons. Relief was denied in the district court for the reason that the judgment at law was sought to be impeached for fraud, and the court found that there was no proof whatever of such fraud, nor any showing that the trial at law was not fair and impartial. It is not now contended that there was any fraud practiced in either of the trials at law, the effort here to open the judgment being based entirely upon newly-discovered evidence that could not, as it is claimed, have been made available in the previous trials at law. But the fact that the district judge conceived that the sole matter involved was a question of fraud in fact in the trial at law should not be a matter of surprise, in view of the pleading; it being charged in the complaint, on information and belief, that the Rineharts had fraudulently procured the removal of the government corners for the purpose of making it impossible to ascertain the boundary line between sections 31 and 32. As the record before us is entirely free from evidence showing, or tending to show, fraud in fact, we may dismiss this allegation of the complaint without further notice. Is the plaintiff, Snider, entitled to have the judgment at law set aside and a new trial awarded in the action at law by reason of newly-discovered evidence? The new evidence upon which plaintiff predicates this suit relates solely to the location of the government corner on the north between sections 31 and 32, this being one...