Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

* *

be divided by north and south lines run according to the true meridian, and by others crossing them at right angles, so as to form townships of six miles square. The township shall be subdivided into sections, containing, as nearly as may be, six hundred and forty acres each, by running through the same, each way, parallel lines at the end of every two miles; and by marking a corner of each of such lines, at the end of every mile. The sections shall be numbered respectively, beginning with the number one in the northeast section and proceeding west and east alternately through the township with progressive numbers till the thirty-six be completed. * * * Where the exterior lines of the townships which may be subdivided into sections or half sections exceed, or do not extend six miles, the excess or deficiency shall be specially noted, and added to or deducted from the western and northern ranges of sections or half sections in such township, according as the error may be in running the lines from east to west, or from north to south."

It is conceded that section 31 is in the southwest corner of township number 13, and in the west tier of sections, and that the shortage should, under the statute, fall in section 31, while the attempt in this case is to deduct the shortage entirely from section 32, and none from section 31; and to accomplish this a new trial is asked for the purpose of establishing the controverted corner at a place other than that called for by the original field notes on file in the surveyor general's office, and to set aside the lines as established in the trial at law, and substitute therefor other lines that have been run in direct violation of the United States statutes. In support of this proposition a number of cases have been cited in which it has been held that the monuments placed upon the ground must control, but in none of these cases has the discrepancy between the monuments and the lines as they should have been surveyed under the statute been more than a few feet, and it may well be doubted whether the rule giving preference to monuments should be extended to a case like the present, even in an action at law; but, however that may be, after the lines have been once established, as in this case, after a protracted litigation at law, a court of equity should not set aside a judgment fairly obtained, in order to maintain a survey that is illegal, if not fraudulent. Where a trial has been had and a judgment rendered at law, the judgment should not be set aside, and a new trial awarded in equity, unless by so doing the ends of justice will be subserved. Such a case, in my judgment, is not disclosed by this record. Here we are asked to set aside a judgment upon a finding that the newly-discovered corner is established by a preponderance of the evidence only, in a suit instituted years after the judgment was rendered and the

new evidence discovered. The controversy has already been before the courts for upwards of eight years. Two of the original plaintiffs have died since its commencement. Should a new trial be awarded, counsel will not only be deprived of their advice and assistance in conducting the litigation, but their lips are also sealed. It is true that the testimony of these parties, as taken upon a former trial, is preserved in the record; but I apprehend that this testimony would be of but little avail upon a new trial, upon the question of the authenticity of the alleged newly-discovered corner, as their testimony upon the former trial was not directed to this point. For the reasons given, the judgment should be affirmed.

ELLIOTT, J. (concurring with the CHIEF JUSTICE on one point). The attempt to impeach the former judgment on the ground of fraud is practically abandoned, but it is insisted that plaintiff is entitled to a new trial on the ground of newly-discovered evidence. Plaintiff was possessed of the newly-discovered evidence for a period of about five months, during which time he could have had the former judgment vacated, and a new trial allowed, by making application therefor to the court in the former action, in accordance with the statute. That mode of relief was plain, speedy, and adequate. In my opinion, plaintiff's negligence in not making application to have the former judgment vacated is conclusive against his right to seek the same relief by another action in the nature of a bill of review. To this extent I concur in the opinion of Chief Justice HAYT. My Brother GODDARD concedes that if plaintiff had opportunity to apply for a new trial on the ground of newly-discovered evidence, under section 217 of the Code, and neglected so to do, he would be precluded from seeking relief upon the same ground in a suit in equity. I am unable to see why his neglect to apply for a new trial under section 272 of the Code should not have the same effect. To have secured a new trial under section 217 would have required a showing of diligence which might have been difficult to make, whereas he was entitled to a new trial under section 272 as of right, without showing cause; and the new trial, whatever the mode of obtaining it, would have afforded him the same relief. As to other questions so ably discussed by my associates, I express no opinion. Affirmed.

GODDARD, J. (dissenting). After a careful and thorough examination of the record presented, I am unable to concur in either the conclusion of my learned associates or in the reasoning upon which that conclusion rests. It is of little moment, so far as the question before us is concerned, what the testimony of any individual witness was before the trial court, since that court, in the exercise of its peculiar province, has found

that the weight of the testimony introduced sustained certain conclusions of fact, and, under the well-settled doctrine of this court, these findings must be accepted as correct, and are not open for review upon appeal. Warren v. Adams, 19 Colo. 515, 36 Pac. 604; Nixon v. Harmon, 17 Colo. 276, 29 Pac. 808; Lundy v. Hanson, 16 Colo. 267, 26 Pac. 816; Riley v. Riley, 14 Colo. 290, 23 Pac. 326; Mining Co. v. Musgrave, 14 Colo. 79, 23 Pac. 458; Rollins v. Board of Com'rs, 15 Colo. 103, 25 Pac. 319; Publishing Co. v. Russell, 18 Colo. 75, 31 Pac. 503; Wallace v. Giltinan, 18 Colo. 473, 33 Pac. 185; Castner v. Richardson, 18 Colo. 496, 33 Pac. 163. The sole question, therefore, for our consideration, is whether the facts found by the trial judge are sufficient to entitle the plaintiff to relief in equity and to a new trial upon the ground of newly-discovered evidence. It is well settled that equity will enjoin a judgment at law when its enforcement is against conscience, and grant a new trial upon newlydiscovered evidence material to and conclusive upon the merits, which the aggrieved party could not have produced upon the trial at law by the exercise of proper diligence, or of which he could not avail himself by reason of some accident, mistake, or circumstance beyond his control. Judge Story, in his work on Equity (volume 2, § 894), states the rule on this subject as follows: "Relief will be granted where the defense could not at the time, or under the circumstances, be made available at law, without any laches of the party. Thus, for instance, if a party should recover a judgment at law for a debt, and the defendant should afterwards find a receipt under the plaintiff's own hand for the very money in question, the defendant (where there was no laches on his part) would be relieved by a perpetual injunction in equity. So, if a fact material to the merits should be discovered after a trial, which could not, by ordinary diligence, have been ascertained before, the like relief would be granted." Among the many authorities that might be cited to the same effect, see 3 Grah. & W. New Trials, 455; 1 High, Inj. § 112 et seq; Cox v. Railroad Co., 44 Ala. 611; Floyd v. Jayne, 6 Johns. Ch. 479; Carrington v. Holabird, 17 Conn. 530; Baltzell v. Randolph, 9 Fla. 366. The circumstances under which equity will interpose because of newly-discovered evidence are summed up by Black, in his work on Judgments (volume 1, § 386), as follows: "(1) The evidence must have been discovered since the trial. (2) It must be evidence that could not have been discovered before the trial by the plaintiff or defendant, as the case may be, by the exercise of reasonable diligence. (3) It must be material in its object, and such as ought, on another trial, to produce an opposite result on the merits. (4) It must not be merely cumulative, corroborative, or collateral."

Are these conditions met by the facts

found by the court below? The "Snider Monument," as it is termed, is found to be the true government corner as established by the original government survey, and in place as originally located. Plaintiff used reasonable diligence to discover it before the trial at law. Adopting it as the true north corner for sections 31 and 32, a line correctly run therefrom to the south township line between these sections places the caverns in question in section 31. If all these things be true,-and we must assume they are on this appeal,-it would seem to admit of but little question that the appellant exercised the requisite diligence, or as to the sufficiency of the newly-discovered evidence, if verified to the satisfaction of the jury, to produce a different and decisive result on another trial.

But it is said that if it be conceded that the newly-discovered stone is properly authenticated, and admitted to be where it was originally placed by the government surveyor, it appearing that it was incorrectly placed, as shown by the field notes of the original survey, it will be inequitable to give appellant an opportunity to utilize it, even if a true corner, by awarding him another trial. Suffice it to say, the survey as made and marked upon the ground, whether incorrectly or not, fixed the boundary line between these sections, and it is not the province of the courts to correct government surveys of public land, or establish lines contrary to such surveys, however incorrect they may be. As was said in Cragin v. Powell, 128 U. S. 631, 9 Sup. Ct. 203: "Whether the official * survey is is a question which was

erroneous

*

not within the province of the court below, nor is it the province of this court to consider and determine. The mistakes and abuses which have crept into the official surveys of the public domain form a fruitful theme of complaint in the political branches of the government. The correc tion of these mistakes and abuses has not been delegated to the judiciary. * * That the power to make and correct sur veys of the public lands belongs to the political department of the government, and that, while the lands are subject to the supervision of the general land office, the decisions of that bureau in all such cases, like that of other special tribunals upon matters within their exclusive jurisdiction, are unassailable by the courts, except by a direct proceeding; and that the latter have no concurrent or original power to make similar corrections.-if not an elementary principle of our land law, is settled by such a mass of decisions of this court that its mere statement is sufficient. * * * The reason of this rule, as stated by Justice Catron in the case of Haydell v. Dufresne, is that 'great confusion and litigation would ensue if the judicial tribunals, state and federal, were permitted to interfere and overthrow the

public surveys on no other ground than an opinion that they could have the work in the field better done, and divisions more equitably made, than the department of public lands could do.' 17 How. 30." Lands are granted by the government according to the official survey, and by his patent from the government the appellant acquired title to the land conveyed thereby as described and designated by such survey, and the locus of his land is to be ascertained by reference to it and the original landmarks placed on the ground by the government surveyor. It is equitable that this should be done in this

case.

It is undisputed that about June 1, 1881, appellant discovered the caverns in question, and took immediate steps to pre-empt and acquire title to that portion of section 31 which, according to the government survey, as actually made, included them; and, whether correct or not, the location of the E. 1⁄2 of the N. E. 14, and the N. E. 4 of the S. E. 4, not only must but in justice ought to be determined by such survey, and not by the survey upon which the lines were established at the last trial, based, as it was, upon the theory that the true corner was lost. The cases are numerous which sustain the proposition that monuments placed upon the ground by the government surveyor control, when a discrepancy exists between them and the courses and distances as given in the field notes, and I do not find any case in which it is held that the extent of the discrepancy changes this rule. Among them are the following: Mayor of Liberty v. Burns, 114 Mo. 426, 19 S. W. 1107, and 21 S. W. 728; Knight v. Elliott, 57 Mo. 317; Climer v. Wallace, 28 Mo. 556; Bruckner's Lessee v. Lawrence, 1 Doug. (Mich.) 19; Nesselrode v. Parish, 59 Iowa, 570, 13 N. W. 746; Johnson v. Preston, 9 Neb. 474, 4 N. W. 83; Thompson v. Harris (Neb.) 58 N. W. 712; Ogilvie v. Copeland (Ill.) 33 N. E. 1085; Beardsley v. Crane, 52 Minn. 537, 54 N. W. 740; Hess v. Meyer, 73 Mich. 259, 41 N. W. 422; George v. Thomas, 16 Tex. 74; Pollard v. Shively, 5 Colo. 309; Cullacott v. Mining Co., 8 Colo. 179, 6 Pac. 211.

Why should the mistake of the government, in disposing of its land upon an incorrect survey, be invoked to destroy the title of a bona fide purchaser in actual possession? and why is not such a purchaser's claim to the land entitled to recognition and protection in equity as well as at law? It seems to me that the rule invoked by appellees, and announced by the chief justice, that the mistake of the government surveyor should be visited upon the unoffending head of appellant, is somewhat in the nature of a vicarious punishment.

The remaining proposition decisive of this appeal, it being the only one upon which my learned associates agree, is that the abortive attempt and failure of plaintiff to obtain a

new trial, under chapter 23, Code Civ. Proc., precludes him from invoking this equitable relief. It is to be inferred from the citations in support of this conclusion that it is predicated upon the well-settled doctrine that equity will not interfere where there is a plain and adequate remedy at law, and that the statutory right of a defeated party in an ejectment suit to avail himself of a new trial upon request therefor, and the payment of the costs by the first day of the next term, affords an adequate legal remedy, and hence is exclusive, if available under the circumstances. The unsoundness of this reasoning is apparent, when we consider the reason upon which equity refuses its aid. It is because a way has been provided to obtain redress at law upon the same grounds that are relied on for its interference, and if such way has been neglected, or the relief has been denied at law upon a fair hearing, it refuses to act. And I concede that if the plaintiff had an opportunity to apply for a new trial upon the ground of newly-discovered evidence, under section 217, c. 17, Code Civ. Proc., and neglected to do so, he is precluded from seeking relief upon the same ground in a suit in equity. But it is clear and undisputed that he had no such opportunity. When he discovered the corner in June, 1888, the time had passed in which he could present a motion for a new trial on the merits, and the only way he could thereafter obtain a new trial, upon the ground of newly-discovered evidence, was by the aid of equity. Relief upon this ground could not, in my judgment, be invoked under section 75 of the Code. It is unquestioned that a motion for a new trial upon the ground of newly-discovered evidence may be made concurrently with an application to vacate the judgment, upon payment of costs, under chapter 23; and, if this be so, it seems to me that it logically and necessarily follows that a suit in equity will also lie for the same purpose concurrently with such application, if the time has elapsed for filing the motion when the evidence is discovered. "The statutory remedy by motion is only available during the term at which the judgment is rendered, and in many cases a denial of the most obvious justice would result from holding this remedy exclusive. The assistance of equity cannot be invoked so long as the remedy by motion exists; but when the time within which a motion may be made has expired, and no laches or want of diligence is imputable to the party asking relief, there is nothing. in reason or propriety, preventing the interference of equity." Bibend v. Kreutz, 20 Cal. 110. Counsel for appellees does not place much reliance upon the claim that the attempt to obtain a new trial by the payment of costs estops plaintiff from invoking equitable relief, but insists, rather, that the delay in bringing the suit constitutes laches that bar his right to the remedy, and the prosecution of his appeal from the judg

*

*

ment denying him a new trial, under chapter 23, did not excuse him from instituting this action while such appeal was pending. His contention upon this matter cannot be better expressed than in his own language. He says: "It is said he had a right to prosecute this appeal. We do not question it. But was it a prerequisite to the institution of a suit in equity to avoid the judgment, the merits of which were not involved in the appeal? We think clearly not. Had the suit then been instituted, we submit it could not have been dismissed on the ground that the plaintiff had a plain, adequate, and certain remedy at law by appeal. Surely, the district court could not have so held without nullifying its own judgment, denying the motion for a new trial. It is a fundamental rule that courts of equity are open to suitors in all cases when the remedy at law is not plain, certain, and adequate." It is apparent, therefore, that the learned counsel did not regard the application under the statute as exclusive, nor even a justification for delay in bringing the present action, and he presents what I regard as the only debatable question growing out of the pendency of that application, and that is whether the delay in bringing this suit, while it was pending in the court below and on appeal, constitutes laches that should bar the right to maintain it.

Appellant brought this action immediately upon the decision of that appeal. The reason of this delay is apparent from the history of the law action, as set forth in the complaint. When the second trial resulted in an unfavorable verdict and judgment, he attempted to obtain a new trial under the statute. He relied upon a procedure which the court below finds to have been the generally understood practice in the nisi prius courts, and paid the costs, but took no further steps in apt time to have the judgment vacated. At the time appellees took advantage of his default in this regard several terms of court had elapsed; yet, believing it necessary to prosecute an appeal from the judgment, striking the case from the docket and refusing him a new trial, before instituting his suit in equity, he pursued that course. While he may not avail himself of this mistake of law to escape the effect of that judgment, it may be taken into consideration as rebutting any intentional or willful delay in seeking his equitable remedy; and although it is true that immediately on discovering the new evidence, or upon the rendition of that judgment, he might have instituted his present action, his failure to do so, under the circumstances, I do not think in itself constitutes such laches as should bar him from the present remedy, if upon other grounds he is entitled thereto. As was said in this court in the case of Warren v. Adams, supra: "Length of time alone is not sufficient to justify the court in refusing equitable relief. The circumstances under which the delay occurred. together with the lapse of time, must

be such as to impute negligence to the party who seeks relief." Not only lapse of time, but other circumstances, must usually intervene to successfully invoke the doctrine of laches. Every case is governed by its own circumstances, and whether delay is sufficient to effectually bar the remedy is to be resolved in the light of those circumstances. In the case of Dunne v. Stotesbury, 16 Colo. 89, 26 Pac. 333, Justice Elliott, speaking for the court, said: "When there has been unreasonable delay in bringing suit, courts of eq uity sometimes refuse relief, even though the statutory period of limitations has not expired; but this is generally in cases where acquiescence amounts to a tacit recognition of the rights of the party in possession, and where the assertion of adverse rights is regarded as not only inconsistent, but unconscionable, or where other equitable considerations equally strong are established." In this case the property in question has remained in statu quo. The proceeds derived from the undivided interest that appellees claim in the caverns have been preserved by the appointment of a receiver. The appellant has not slept upon his rights, but has persistently and continually attempted to obtain relief from the judgment. Nor can the appellees be prejudiced by loss of witnesses by death or removal from the jurisdiction of the court, since their evidence taken upon the former trials is preserved in the record, and may be resorted to upon another trial. Mining Co. v. Musgrave, supra. None of these equitable considerations have intervened, and I can see no reason why the delay in instituting this suit should deprive appellant of relief from a judgment manifestly inequitable, a delay attributable solely to a mistake in regard to an unsettled practice, and one that might easily have been avoided by appellees had they seen fit to waive a technical default and submit to a trial upon the merits. I am clearly of the opinion that the court below erred in dismissing the complaint, and in not granting a new trial, upon the ground of newly-discovered evidence, although correct in its conclusion that the facts were insufficient to overthrow the judgment on the ground of fraud; and that the judgment should be reversed.

[blocks in formation]

1. Defendant, the head of a family, came from New York to Colorado, intending to live there permanently, and to remove his family there when able. When he left New York his family went to Pennsylvania, and were never in Colorado. Held, that defendant was not "residing with" his family in Colorado, so as to exempt stock in trade in his possession, under Mills' Ann. St. § 2562.

2. Where only part of property levied on is claimed to be exempt, the mere demand by the

execution defendant of his right to select is not equivalent to making the selection, so as to perfect the right of exemption.

3. Where a writ of attachment has been levied upon a stock of goods, part of which are claimed as exempt, and part are confessedly subject to the attachment, an order of court releasing all the property attached is error.

Appeal from Arapahoe county court. Action by Max Schwartz against Sigmund Birnbaum, accompanied by writ of attachment. There was a judgment in the justice court for the amount of his claim and an order sustaining the attachment. From a judgment of the county court, reversing the order of the justice court sustaining the attachment, plaintiff appeals. Reversed.

Max Schwartz, the appellant, who was plaintiff below, brought his action against Sigmund Birnbaum, the appellee and defendant, to recover the sum of $258.41, which plaintiff alleged to be due upon a contract, and that the demand sued upon was on an overdue book account. Plaintiff sued out a writ of attachment in aid of his action, and the same was levied, as shown by the return to the writ, upon defendant's "stock of clothing, shirts, notions, and anything in store 3205 Larimer street," and by leaving a copy of the writ with defendant. The defendant filed in the justice's court his affidavit of exemption, which, omitting the title, is as follows: "S. Birnbaum, above-named defendant, being duly sworn, deposes and says that he is a married man, and the head of a family, and is a resident of Colorado, and is entitled to the benefit of the exemption laws of said state, and that he claims all the property attached in said case as exempt, except the property he bought of the plaintiff, and he demands the right of selection thereof." The defendant apparently did not contest the validity of the claim sued upon. In the justice's court a judgment was rendered in favor of the plaintiff for the amount of said claim, and an order was made sustaining the attachment. From this order sustaining the attachment an appeal was taken to the county court, and upon trial there the county court found the issues in favor of the defendant, and ordered that all the goods levied upon should be released, and returned by the plaintiff to the defendant. From this judgment of the county court the plaintiff comes here with his appeal.

The only testimony given was that by the defendant himself. It is to the effect that at the time of the levy of the writ of attachment the defendant was a married man, and the head of a family, consisting of his wife and two children, who were dependent upon him for support. He was conducting a small shop for the sale of clothing and gentlemen's furnishing goods in the city of Denver, and had been engaged in such business here for about 16 months. He came from the city of New York with the intention of settling in this state, and sending for his family to come to Colorado to make this their home, as he v.39P.no.4-27

says, "as soon as he was fixed to receive them." He never resided with his family in this state; that is, the wife and children had never been in Colorado, they residing temporarily in the city of Philadelphia during all the time that defendant himself had been in Colorado. Two or three months before the levy of this writ he had sent to his family money with which to pay the expenses of a removal to Colorado, and, although they sent on some furniture, they themselves have never arrived. The prop

erty which defendant claims as exempt from levy was his stock in trade, used and kept for carrying on his business, and the value was less than $200. There is no evidence to show what are the specific articles which the defendant claims to be exempt, further than that the articles are a part of his stock of gentlemen's furnishing goods, and that they are no part of the goods which he bought from plaintiff. While the record is not explicit, it appears that the issue was tried in the county court upon the same affidavit that was filed by the defendant in the justice's court. There is no evidence that any demand for exemption was made by the defendant at the time of the levy of the writ, nor is there any evidence that at any time a selection of the property claimed to be exempt was ever made by defendant. The only claim that the defendant makes, so far as the evidence shows, was that embodied in, and asserted by, the affidavit which has been heretofore set out in full; but he never, by any word or act, otherwise attempted to exercise the right of selection which he asserted in his affidavit. The statute under which the appellee claims that he is entitled to the right of exemption is, in substance, as follows: The stock in trade, used and kept for the purposes of carrying on his trade or business, not exceeding $200 in value, when the same is owned by any person being the head of a family and residing with the same, shall be exempt from levy and sale under any execution or writ of attachment. Gen. St. § 1866; Mills' Ann. St. § 2562.

J. W. Horner and J. E. Robinson, for appellant. George A. Smith, for appellee.

CAMPBELL, J. (after stating the facts). The questions sought to be raised by this appeal may be stated as follows: First. Was the defendant, under our statute, a person entitled to the exemption of his stock in trade? Second. Has he made his claim for exemption in the proper time and manner? Third. Does the claim and evidence justify the judgment rendered by the county court?

That the defendant at the time of the levy of the writ of attachment was the head of a family admits of no doubt. That he was then "residing" with the same is not true in the literal or ordinary sense of the term. But it is contended by the appellee, as our constitution enjoins upon the legislature the enact

« ΠροηγούμενηΣυνέχεια »