Sylvester v. J.I. Case Threshing Mach. Co.

• Court: Colorado Court of Appeals
• Writing for the Court: HURLBUT, J.
• Citation: Sylvester v. J.I. Case Threshing Mach. Co., 122 P. 62, 21 Colo.App. 464 (Colo. App. 1912)
• Decision Date: 11 March 1912
• Parties: SYLVESTER et al. v. J.I. CASE THRESHING MACH. CO.

122 P. 62

21 Colo.App. 464

SYLVESTER et al. v. J.I. CASE THRESHING MACH. CO.

Court of Appeals of Colorado

March 11, 1912

Appeal from District Court, Rio Grande County; Charles C. Holbrook Judge.

Action by the J.I. Case Threshing Machine Company against Osborne W Sylvester and another. From a judgment for plaintiff defendants appeal. Reversed and remanded.

Walling J., dissenting.

C.M. Corlett and G.M. Corlett, for appellants.

Jesse Stephenson, for appellee.

HURLBUT J.

Action by appellee (plaintiff below) against appellants (defendants below) to recover a judgment upon the last two promissory notes of a series of four, maturing at different dates, given as part of the purchase price of a certain traction engine sold and delivered by plaintiff to defendants. This action having involved the same transaction that was considered in J.I. Case Threshing Machine Co. v. Osborne W. Sylvester et al., 122 P. 61, decided at this term, it will not be necessary to restate the facts concerning the transaction.

In the case now under consideration, the trial court sustained a written motion filed by plaintiff to strike the second defense from defendants' answer, which left nothing remaining in the answer but a simple admission that they had signed and delivered the notes in issue. The question here presented, and which is decisive of this appeal, is the one concerning the actions of the court in sustaining plaintiff's motion. Defendants stood upon their answer and perfected their appeal to the Supreme Court of this state, which appeal was transferred to this court under the legislative act of 1911 creating this court. Sess.Laws 1911, 266. The answer admitted that defendants signed the two notes in issue, and in the second paragraph thereof set forth at length substantially the same defense they had pleaded in the case of J.I. Case Threshing Machine Co. v. Osborne W. Sylvester et al., supra, and also set up in said paragraph the judgment which they had recovered in the case last mentioned as a bar to the prosecution of the present action. At the time this suit was commenced, the former suit had culminated in a judgment from which an appeal had been taken, which was undetermined at the time. Appellants' counsel contend that, as the judgment attempted to be pleaded in the answer as a bar to the action was pending on appeal and undetermined at the time of the trial of this case, the plea could not be sustained, and cites in support of his contention Glenn v. Brush, 3 Colo. 26, and D. & R.G. Ry. Co. v. Crawford, 11 Colo. 600, 19 P. 673 which appear to sustain them.

It would seem that, when the second action was called for trial the court having tried the former case and being possessed of full knowledge of the issues in that case and the situation there existing, the proper practice would have been to enter an order holding this case in abeyance until the determination of the appeal mentioned, but, having decided to hear and determine the cause, defendants were authorized to plead any defense in their answer which may have existed in their favor, such as breach of warranty, failure of...