Yampa Valley Coal Co. v. Velotta, 11727.

• Citation: 83 Colo. 235,263 P. 717
• Decision Date: 16 January 1928
• Docket Number: 11727.
• Parties: YAMPA VALLEY COAL CO. v. VELOTTA ex ux.
• Court: Supreme Court of Colorado

263 P. 717

83 Colo. 235

YAMPA VALLEY COAL CO. v. VELOTTA ex ux.

No. 11727.

Supreme Court of Colorado

January 16, 1928

Rehearing Denied Feb. 6, 1928.

Department 1.

Error to District Court, City and County of Denver; Geo. F Dunklee, Judge.

Action by Giuseppe Velotta and wife against the Yampa Valley Coal Company. Motion to dismiss was denied, and defendant brings error.

Reversed and remanded, with directions.

Henry J. Hersey and Fred W. Varney, both of Denver, for plaintiff in error.

John T. Bottom, of Denver, for defendants in error.

WHITFORD Acting C.J.

On March 19, 1912, the defendants in error Giuseppe and Concetta Velotta commenced an action in the district court against the Yampa Valley Coal Company, the plaintiff in error, to recover damages for injuries to their minor son, which resulted in his death. Six months later the issues were joined, and the case was set for trial on the merits. On the trial, at the conclusion of the evidence, the court directed a verdict for the defendant company. After filing their bill of exceptions in the district court more than two years elapsed before the plaintiffs filed their petition in the Supreme Court for a writ of error. On April 2, 1917, the Supreme Court, with three justices dissenting, reversed the judgment of the district court, and remanded the case, with instructions to the lower court to proceed in accordance with the views expressed in its opinion. For nearly eight years after that decision the case was permitted to lie dormant in the Supreme Court, without any action whatsoever. The remittitur was finally issued to the district court on February 24, 1925. Thereupon the defendant company filed a motion, with supporting affidavits, to dismiss the action, because of extreme laches, and want of due diligence in prosecuting the case within a reasonable time after the order of remand by the Supreme Court; because the defendant company is civilly dead, and the plaintiffs have slept upon their rights, and have failed to prosecute their action prior to the formal dissolution of the defendant company; because material witnesses are dead, and other witnesses have disappeared and departed the jurisdiction, and for other reasons. The district court denied the motion. The court held that the judgment of the Supreme Court (Velotta v. Yampa Coal Co., 63 Colo. 489, 167 P. 971, L.R.A. 1918B, 917), reversing and remanding the case, was of such a mandatory character as to deprive the lower court of its discretion and power to pass upon the question of the plaintiffs' laches and want of diligence. This was error. The district court should have sustained the motion to dismiss the action. Plaintiffs offered no reasonable excuse for the long delay, and lack of diligence in prosecuting the action. The Supreme Court had reversed and remanded the case. The case was at issue, and was ready for trial de novo. The plaintiffs took no steps whatever to bring the case to trial for a period of eight years. An attempt was made by plaintiffs to excuse their want of diligence by showing that the attorney for the defendant was overseas, and that the residences of the officers of the corporation were unknown to them, and that, by the exercise of due diligence, no one could be found upon whom service could be made for the purpose of bringing the defendant into court. The showing was wholly insufficient to excuse the delay. The verified annual reports of the corporation, filed with the...