Sprague v. Stratton-Massachusetts Gold Mines Co.

• Decision Date: 01 July 1912
• Citation: 125 P. 490,53 Colo. 315
• Parties: SPRAGUE et al. v. STRATTON-MASSACHUSETTS GOLD MINES CO. et al.
• Court: Colorado Supreme Court

125 P. 490

53 Colo. 315

SPRAGUE et al. v. STRATTON-MASSACHUSETTS GOLD MINES CO. et al.

Supreme Court of Colorado

July 1, 1912

Error to District Court, Chaffee County; Lee Champion, Judge.

Action by the Stratton-Massachusetts Gold Mines Company and others against Charles L. Sprague and another. Judgment for plaintiffs, and defendants bring error. Affirmed.

G. K. Hartenstein, of Buena Vista, for plaintiffs in error.

M. B Carpenter, of Denver, for defendants in error.

GABBERT J.

Plaintiff in error Sprague brought a suit against the Stratton-Massachusetts Gold Mines Company on four causes of action: (1) For $4,750, salary due Sprague as general manager of the company; (2) for $5,252, money advanced and paid out by him for the use and benefit of the company; (3) for $2,000 due one Slocum for attorney's fees for services rendered the company, assigned to Sprague; (4) for $2,000 due one Wood for services as secretary of the company, and assigned to Sprague. Judgment was rendered in favor of Sprague by default for the amount of the several causes of action set out in his complaint. Execution issued on this judgment, under which the property of the company was levied upon and sold to Sprague by the sheriff of Chaffee county. Defendants in error brought an action to restrain the issuance of a sheriff's deed to Sprague, and to set aside the judgment.

The trial court found that at the time the action of Sprague was instituted he was president, general manager, treasurer, and a director of the company; that his suit was brought without knowledge of the other directors of the company, and that service in his action was made upon the secretary of the company, brought here from Massachusetts by Sprague for that purpose, who upon his return to his home, denied knowledge of the commencement of the action, or of service of summons upon him; and that the other directors did not know the action had been instituted. The judgment was to the effect that the judgment entered in the Sprague action be set aside and held for naught; that the cause be reinstated on the docket, and 60 days allowed the defendant company to answer the complaint. The defendants have brought the case here for review on error.

By the complaint in the case, it was charged that the Sprague judgment was obtained by collusion and fraud; and that the company was not indebted to Sprague upon the several causes of action set out in his complaint, or, at least, not indebted on either of these causes of action in any material sum.

At the close of the testimony on behalf of plaintiffs, the defendants moved for judgment, based upon the provisions of section 146 of our Civil Code (Mills')--section 162, Code Civ. Proc. (Revision of 1908)--which provides, in...