Spaulding v. Porter

• Decision Date: 19 March 1934
• Docket Number: 13073.
• Citation: 31 P.2d 711,94 Colo. 496
• Parties: SPAULDING et al. v. PORTER.
• Court: Colorado Supreme Court

31 P.2d 711

94 Colo. 496

SPAULDING et al. v. PORTER.

No. 13073.

Supreme Court of Colorado, En Banc.

March 19, 1934

Error to District Court, Morgan County; Arlington Taylor, Judge.

Action by Mary A. Porter against Mortimer W. Spaulding and another on two causes of action. A demurrer to the first cause of action was sustained, and judgment thereon was for defendants. On the second cause of action, judgment was rendered for plaintiff, and defendants bring error.

Affirmed.

M. W. Spaulding, of Denver, and E. P. O'Leary for plaintiffs in error.

C Clyde Barker and Harold M. Webster, both of Denver, and Stoton R. Stephenson, of Fort Morgan, for defendant in error.

BOUCK Justice.

Spaulding and O'Leary were defendants in the district court of Morgan county, the action being brought by Mary A. Porter on two causes of action, namely, one for rescission and cancellation of an oil and gas lease (on the ground of fraudulent representations alleged to have been made to her parents, Joseph and Phoebe A. Richie, her predecessors in title, who granted the lease to the defendants), and the other to quiet the title alleged to have been clouded by the same lease, which Mrs. Porter says is invalid and void. A demurrer to the first cause of action was sustained, and judgment thereon went in favor of the defendants. This being a suit in equity, the trial on the second cause of action was to the court; findings and judgment were for the plaintiff; and the defendants are here asking for a reversal.

Before discussing the merits, which we purpose doing in subdivision 5 below, where the lease here involved is quoted, we shall dispose of certain alleged errors assigned as to various rulings of the lower court in relation to pleading and practice.

1. It is said there was error in denying the defendants' motion for a change of venue from Morgan county to the city and county of Denver. The ground alleged in the motion was that the defendants had been served--not in Morgan county, where the case was instituted--but in Denver. Possibly that ground was good in so far as it related to the first cause of action. Be that as it may, however, this cause of action was eliminated from the case when the demurrer interposed to it was sustained. Any errors committed during the trial in regard to the first cause of action were thereby rendered immaterial, irrelevant, and presumably harmless. The second cause of action, on the other hand, was, according to the plaintiff's contention, for the determination of an interest in real property. If the contention is correct, as we think it is, the case was properly triable in Morgan county, where the land is admittedly situated. Code 1921, § 25 (Courtright's M. A. C. 1933, § 25); Allen v. Sterling, 76 Colo. 122, 230 P. 113; Campbell v. Equitable Securities Company, 12 Colo.App. 544, 56 P. 88. There was no prejudicial error in this particular.

2. The defendants complain of the court's denial, in whole or in part, of their motion to strike parts of the complaint and their motion to make the complaint more specific. These motions belong to the class addressed to the sound judgment of a trial court, whose discretion must govern unless there is proof of its abuse. By answering the amended complaint after the court's adverse rulings, the defendants have here waived any error in the latter. AEtna Co. v. North Sterling Dist., 75 Colo. 185, 191, 225 P. 261, 263; Louden Co. v. Neville, 75 Colo. 536, 538, 227 P. 562, 563; Dickson v. Retallic, 80 Colo. 78, 80, 249 P. 2, 3. As regards the defendants' motion to require separation of allegedly different causes of action in each of the two purported causes of action, the question thereby raised became moot in so far as it bore upon the first cause of action, because this was eliminated from the case by the trial court. To the extent that it was directed against the second cause of action, the motion is bad and was properly denied; we consider the second cause of action as but a single one; namely, to quiet title. Any additional relief asked for therein is merely that which is usually incidental to the quieting of title. It follows that there was no prejudicial error in connection with any of these motions.

3. Numerous demurrers were interposed to the amended complaint, some general, some special. The objections presented by these demurrers, except the demurrer on the ground of lack of jurisdiction and the demurrer for insufficiency of facts, were waived when the defendants answered over. Elliott v. Field, 21 Colo. 378, 41 P. 504. The legal questions submitted by the above-excepted demurrers need not be discussed apart from the discussion of the merits of the case later on.

4. It is earnestly argued that the defendants' motion for judgment on the pleadings and a motion to strike the replication from the files were erroneously denied. Defendants served upon plaintiff's counsel a notice of the filing of the answer. Technically, such notice had the effect of limiting to 10 days after service the time for filing a replication.

Code 1921, § 66 (Courtright's M. A. C. 1933, § 66). Thereafter the defendants had a right to ask the clerk of the court to enter a default. They did not do so. Instead, they filed their motion for judgment on the pleadings, with a request therein that a default be entered, which request came Before the court only at the time the motion was heard. Before the motion was brought on for hearing, the plaintiff had filed her replication. It was the clerk's duty to accept the replication for filing, as he did, there being as yet no entry of default. In due time the motion was argued, the defendants insisting that, on account of the absence of a replication at the time they filed their motion, they had an absolute right to charge the plaintiff with implied admission of the truth of all new matter in the answer under Code 1921, § 77 (Courtright's M. A. C. 1933, § 77). The court denied the motion. There was no error in the action so taken. Even if the defendants had requested the clerk to enter a default, and if the clerk had entered it, the default could have been either set aside or allowed to stand, at the discretion of the court, which always has the power to grant additional time for filing a pleading when nobody is shown to be prejudiced thereby. Mitchell v. Knott, 43 Colo. 135, 137, 95 P. 335, 336; Metallic Mining Co. v. Watson, 51 Colo. 278, 286, 117 P. 609, 611, Ann.Cas. 1913A, 1276. Compare Woods v. Chellew, 15 Colo.App. 368, 62 P. 230. Refusing to enter judgment on the pleadings was the practical equivalent of extending the time for filing the replication, and no prejudice is apparent in so doing. A litigant has no vested right to profit by a mere technicality. The case of Ferrara v. Auric Mining Co., 43 Colo. 496, 95 P. 952, 17 L.R.A. (N. S.) 964, cited by defendants, is not authority to the contrary. In that case the plaintiff had failed to file a replication, and the lower court exercised its judicial discretion by holding the plaintiff to the consequences of her omission. Pleadings, like rules of practice and procedure, must be used as servants of justice, and not be premitted to become unjust or tyrannical masters. An additional reason exists for upholding the action of the court in declining to penalize the plaintiff for not filing her replication sooner: there was in the answer no new matter calling for contradiction or avoidance. The seemingly affirmative allegations of the defendants, other than legal conclusions and purely evidentiary assertions, merely amount to a denial of what was set forth in the complaint. In fact, the plaintiff did not employ the time-honored short form of complaint for a suit to quiet title, but anticipated the defense by setting out the defendants' claim of right or title at considerable length. The better practice is the other way. Mitchell v. Titus, 33 Colo. 385, 386, 80 P. 1042. Compare Brooks v. Bates, 7 Colo. 576, 4 P. 1069. Logically, the reasons above stated as justifying the lower court's denial of the motion for judgment on the pleadings are equally conclusive that the motion to strike the replication from the files was also properly denied.

5. The foregoing discussion deals with matters of pleading and practice. Now for the real merits.

Upon the oil and gas lease mentioned at the beginning must rest whatever rights or defenses the defendants may have in this case. The material parts of the lease are as follows:

'Oil and Gas Lease.

'This agreement, Made * * * this 30th day of October, A. D. 1924, by and between Joseph Richie and Phoebe A. Richie, husband and wife, of Fort Morgan, Colorado, hereinafter called the Lessor, * * * and M. W. Spaulding and E. P. O'Leary, of Denver, Colorado, hereinafter called the Lessee, witnesseth:

'That the said lessor for and in consideration of Two Dollars, cash in hand paid, the receipt and sufficiency whereof is hereby acknowledged, and the covenants and agreements hereinafter contained, on the part of the lessee to be paid, kept and performed, have granted, demised, leased and let, and by these presents do grant [etc.] unto the said lessee, for the sole and only purpose of mining and operating for oil and gas, and laying pipe lines, building tanks, power stations and structures thereon to produce, save and take care of, said products, all that certain tract of land situate in the County of Morgan, State of Colorado, described as follows, to-wit: E 1/2 Section 4, Township 2, Range 57, and containing 320 acres more or less. * * *

'It is agreed that this lease shall remain in force for a term of eighteen months from this date, and as long thereafter as oil, gas, or either of them is produced from said land by the lessee.

'In consideration of the premises the...