Webster v. Gaff
| Citation | 6 Colo. 475 |
| Parties | WEBSTER, ASSIGNEE, v. GAFF ET AL. |
| Decision Date | 01 April 1883 |
| Court | Supreme Court of Colorado |
Error to District Court of Araphahoe County.
THE case is stated in the opinion.
Messrs BROWNE and PUTNAM and Mr. CHARLES H. TOLL, for plaintiff in error.
Messrs CHARLES and DILLON and Mr. L. C. ROCKWELL, for defendant in error.
This is a motion to dismiss the writ of error on the ground that the writ was not sued out within 'the two years' allowed by the bankrupt law.
On the 27th day of April, A. D. 1876, John Mechling, since deceased who was then assignee of said bankrupt, filed his bill of complaint in the district court of Arapahoe county, on the chancery side thereof, praying that a certain decree of foreclosure of mortgage and proceedings of sale of mortgaged premises, previously had and entered in said court, wherein the defendants in error, Thomas Gaff and James W. Gaff, were complainants, and the said George W. McClure was respondent be declared null and void; that the same be set aside, and that the said assignee be restored to the possession of certain real estate mentioned in said proceedings, and for other relief. On the 22d day of May, A. D. 1878, a decree was entered in said cause, dismissing the complainant's bill.
To review this decree, the present writ of error was sued out on the 6th day of March, A. D. 1883. The controversy relates to real estate situated in the city of Denver, formerly owned by said bankrupt. Section 5057 of the Revised Statutes of the United States provides that:
In behalf of the motion, we have been cited to the case of Robert E. Jenkins, as assignee in bankruptcy of Samuel J. Walker, plaintiff in error, v. The International Bank of Chicago et al., defendants in error, decided by the supreme court of the United States at the October term thereof, A. D. 1882.
That was a writ of error to the supreme court of the state of Illinois, and presented the same question upon which we are called to pass in this case. The court held that the suing out of a writ of error more than two years after the final decree was a new suit, within the limitation clause of the bankrupt law. We understand the supreme court to base its ruling upon a construction of the bankrupt act, as well as upon a rule of decision of the supreme court of Illinois respecting a writ of error, which rule of decision is that a writ of error is the beginning of a new suit. After stating that the...
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