Talcott v. Delta County Land & Cattle Co.

• Decision Date: 29 June 1903
• Citation: 73 P. 256,19 Colo.App. 11
• Parties: TALCOTT v. DELTA COUNTY LAND & CATTLE CO.
• Court: Colorado Court of Appeals

73 P. 256

19 Colo.App. 11

TALCOTT v. DELTA COUNTY LAND & CATTLE CO.

Court of Appeals of Colorado

June 29, 1903

Appeal from District Court, Delta County.

Action by Francis E. Talcott against the Delta County Land & Cattle Company. From a judgment for defendant, rendered on its motion on a remand of the case from the Court of Appeals plaintiff appeals. Reversed.

Wolcott Vaile & Waterman and H.H. Dunham (William W. Field, of counsel), for appellant.

D.V Burns, for appellee.

MAXWELL J.

This being the second appeal in this cause, reference may be had to the case of The Delta County Land & Cattle Company v Talcott, 68 P. 985, for a statement of the facts out of which this litigation arose. Upon this appeal the following statement presents the material points: The last paragraph of the opinion of this court in The Delta County Land & Cattle Company v. Talcott, supra, is as follows: "Upon the evidence as it is presented in this record, I think the deed of Lamb to the Delta Land & Cattle Company vested a good title in the latter, and that the court erred in canceling the deed of release. Let the judgment be reversed. Reversed." The judgment entered by this court was: "It is therefore considered and adjudged by the court that the judgment aforesaid of said district court be, and the same is hereby, reversed, annulled, and altogether held for naught, and that this cause be remanded to said district court for further proceedings according to law." The mandate was: "Now, therefore, this cause is remanded to you, the said district court in and for the county of Delta, and state aforesaid, that such further proceedings may be had in said cause as shall conform to the judgment of this court entered as aforesaid, as also with the opinion filed therein." Upon the cause coming on for trial in the district court of Delta county, the following motion was made: "Comes now the defendant, the Delta County Land & Cattle Company, by D.V. Burns, its attorney, and moves the court for an order, pursuant to the mandate of the Court of Appeals, sustaining its motion of nonsuit; also for an order canceling and holding for naught a certain entry made herein on, to wit, the 20th day of March, 1899, ordering expunged from the records of Delta county that certain release deed executed by Edward L. Kellogg, trustee, on the 20th day of April, 1892, and recorded on said day in Book 4, at page 285, of the records of said Delta county, and for the judgment of dismissal and for costs"--which motion was sustained. At the time the foregoing motion was decided, the plaintiff "demanded the right of a new trial of this cause, offered to produce testimony additional to the testimony which was produced on behalf of the plaintiff at the former trial thereof," and moved for a continuance to the next term of court, which motion for a continuance was supported by an affidavit of counsel for plaintiff. The application for a continuance and the motion to retry and introduce further evidence were denied. Judgment was thereupon rendered in favor of the defendant, pursuant to its motion above set forth. Plaintiff appeals, and assigns for error the above-recited rulings of the court.

The effect of a judgment of reversal without direction is squarely presented for determination. Johnson v. Bailey, 17 Colo. 59, 28 P. 81, was before the Supreme Court for review the second time. On the first trial (Bailey v. Johnson, 9 Colo. 365, 12 P. 209) "the judgment was reversed and remanded." We quote from the opinion of the court in Johnson v. Bailey, 17 Colo. 59, 28 P. 81, as pertinent to the case before us, the following extracts: "It is now contended that certain language used by the court in its former opinion of reversal concerning the title and possession of the property at the time of the levy is res judicata of the facts of the case, and therefore that plaintiffs' claim of title must be sustained in any event, as a matter of law." "It is evident however, that the opinion was not intended to be res judicata as to such matter in any future trial; else the case would not have been remanded generally, as for a trial de novo, but would have been remanded with directions to try the cause for the sole purpose of ascertaining the value of the property and the damages for its detention, and thereupon to render judgment in favor of plaintiffs. But such course was not directed by the judgment of reversal, nor was it the course actually pursued." "The legal effect of thus reversing and remanding the cause was that a retrial might be had for the determination of all the matters in issue between the parties upon such evidence as might be produced de novo, and not that certain matters should be considered...