Coryell v. Fawcett

54 Colo. 353

Opinions

PER CURIAM:

Through her attorneys, D. M. Campbell and S. J. De .Ban, the defendant in error, M:iss Pauline M. Fawcett, claiming to be a stockholder in the Garfield County Coal and Fuel •Company, prosecuted an action in the district court of Garfied county against Perry C. Coryell and his wife, Minnie B. Coryell, and the coal company. The Coryells were the officers and a majority of the board of directors of the company, •and the holders of all.the capital stock, unless'Miss; Fawcett owned five thousand shares which she claimed. In the complaint it was alleged that she owned these shares. Her ownership thereof was admitted by the defendants in their answer and throughout the trial. ' The certificate therefor' was not produced, and the company had no stock ledger or other book to show who weré the owners of the stock. The result of the •action in the district court was a decree that Mrs. Coryell' convey to the coal 'company certain lands which she had'taken in her own ñamé, and which the coúrt found belonged to the company; that she pay'to the company'$20,474 in mofiey; that Perry C. Coryell pay to the company the sum of- $1,000, and that the company pay to D. M. Campbell and S. J. De Dan, as attorneys’ fees for them as the plaintiff’s attorneys, the sum of $2,500.

A receiver was appointed to take charge of the business and property of the coal company, who was empowered to do all things that he might lawfully do for the best interests of the company and those interested, and to sue for and collect all money and property due the company, and make distribution thereof according to the respective rights of the stockholders, and in such manner as might be approved by the court.

After judgment, the Coryells applied for a new trial. In support of this application, Mr. Coryell, in an affidavit set forth a chain of facts and circumstances which be began vaguely to remember after the trial, and whereby he attempted to show that Miss Fawcett did not in fact own any stock in the company, but that the stock she had- owned, and which was treated as hers at the trial, had been turned over to Mrs. Coryell several years before for a certain consideration, since which time the Coryells had been the owners of all the stock of1 the company, and the corporation had practically gone out of business. Miss Fawcett denied this in a counter-, affidavit. The motion for a new trial was overruled in August,' 1911. On March 14, 1912, a transcript of the record was filed in this court, and the cause docketed on error with the coal company and the two Coryells as plaintiffs in error, and Miss Fawcett as defendant in error. On the same day and simultaneous with the filing of the transcript, there was filed on behalf of Miss Fawcett, the defendant in error, what purports to be a confession of errors, wherein, after confessing that the court below committed prejudicial error in many particulars, Miss Fawcett empowered an attorney other than Campbell and De Dan to appear for her, file the confession of errors, consent that the judgment be reversed and annulled, and that a final judgment be entered in this court dismissing the complaint.

When the filing of this confession of errors was brought to its attention, this court, of its own motion, appointed a commissioner to take testimony with reference to the preparation and filing thereof. The parties, together with Campbell and De Tan, appeared before this commissioner. Testimony was taken, and the same together with the certificate of the commissioner relative thereto were filed in this court. It appears from the testimony of Miss Fawcett, Mr. Coryell and others, taken before the commissioner, that after the motion for a new trial was denied Miss Fawcett became convinced that she was not the owner of any stock in the company, and that the stock which she had claimed had been by her turned over to Mrs. Coryell for a consideration several years before she began the action. When she became convinced of this she disclaimed any interest in the company, or in the litigation or judgment, and desired, as she expressed it, “to quit." Thereupon, the Coryells and Miss Fawcett had various meetings, conversations and negotiations, the result of which was that the certificate of stock theretofore claimed by Miss Fawcett was found and turned over to the Coryells, and Mr. Cory-ell had his attorney prepare the confession of1 errors, which, if we understand her testimony aright, was outlined by Miss. Fawcett. The confession was prepared and sent to Mr. Cory-ell, who in turn sent it to Miss Fawcett. The latter signed and acknowledged it before a notary public, and transmitted it to an attorney, authorizing and directing him to file it and to consent to the reversal of the judgment and the dismissal of the complaint as above stated. Mr. Coryell, at the request of Miss Fawcett, had seen this attorney, and the latter consented to act for her upon her assurance that her other attorneys had been discharged. Campbell and De Lan were not notified or consulted with reference to the confession of errors, and knew nothing concerning it until they were notified by order of this court. All that was said to them with reference to settling the matters was in September, 19x1, when Miss Fawcett sent to Campbell an alleged proposition óf compro mise or settlement from Coryell, which was returned by Campbell to' Miss Fawcett, with a notation thereon that there was nothing to compromise; that her rights were fully protected by the judgment and there was nothing to' do but tc execute it. When asked by Campbell if she remembered sending a proposition of compromise, Miss Fawcett said: “I do. You turned it down as a yellow dog. You told me to go no further. I got your letter. I know what you said. I gave 'you a fair, square chance. You would not take it. I was going into bankruptcy and I wasn’t going, and I quit. Now. there, you have got it.” After that Campbell and De Fan seemed to have been studiously ignored. It was also- made to appear to this court that shortly before the transcript and confession of errors- were filed, the receiver, at the direction of the district court, was proceeding to sell some of the property of the company to pay the costs of the trial and the attor neys’ fees allowed to Campbell and De Fan. While the Cory-ells and Miss Fawcett were careful in their testimony to avoid saying that their'matters had been settled prior to the filing of the transcript and confession of errors, it is very plain from the testimony and the confession of errors that they had reached an understanding and agreement to wipe out the judgment of the district court, and to- dismiss the action, leaving the Coryells the owners of and in possession of all the capital stock of the company, and its officers and directors. Before the cause was docketed in this court, Miss Fawcett had disclaimed all interest in the company and the judgment, and declared that she never had any cause of action against the defendant. She no longer claimed to be a stockholder. The stock that she had claimed had been turned over to the Cory-ells, and they were, without dispute, the owners of and in possession of all the capital stock, and were the officers and directors. There remained no longer any real or live controversy between the parties to the action. So far as the rights of the Coryells, the company and Miss Fawcett are concerned, their controversy was settled, and the matters over which the litigation had been waged adjusted. To effectually wipe out the litigation and the judgment, it is plain that the parties further agreed that the case should be lodged in this court in the form of a writ of’ error, together with a confession of errors, so that a reversal of the judgment and a dismissal of the complaint should be at once secured. It was not necessary to bring the case here to effectuate the settlement. In so far as the rights of the parties are concerned, that could have been accomplished in the district court. Mrs. Coryell was the owner of all the capital stock, except possibly two shares held by Perry C. Coryell and Perry C. Coryell, Jr., who with Mrs. Coryell were directors, and the company had no debts. The only reason for the attempted proceeding in this court that the parties could have had was. the anticipation that a reversal of the judgment and a dismissal of the complaint would defeat the rights of Campbell and De Lan to' the attorneys’ fees allowed them. Having settled their own matters, the parties have attempted surreptitiously and without notice, to use this court to defeat the attorneys. From the foregoing, the following conclusions necessarily follow :

1. The matters in controversy and the subject of the litigation between the Coryells, Miss Fawcett and the company have been adjusted and settled between them, and the errors, if any, occurring in the lower court, have become moot; for whether the judgment be reversed or affirmed the same result will follow from their agreement. When parties have settled their differences there remains no real controversy or live question concerning the matters that the litigation was about. If parties dispose of the subject matter of litigation there remains no matter to litigate. Under such circumstances, a writ of error will be dismissed. — People v. Hall, 45 Colo. 303; 2 Cyc. 533; 3 Cyc. 188.

2. The parties did not intend that any of the errors assigned should be reviewed in this court. The confession of errors was made before the case was lodged here, and then filed at the same time that the transcript was filed and the case docketed, and the confession was made without regard to the merits of the alleged errors. As no' review was ever intended the writ of error was not sued out in good faith. The purpose of a writ of error is to obtain a bona fidef. review of1 a judgment of a lower court and when such a writ is sued out, not for the purpose nor with the intention of having a bona fide review, but for some other and ulterior purpose, foreign to the purpose of appellate jurisdiction, it cannot be said to save been sued out in good faith, nor that the appellant jurisdiction has attached. Such a proceeding is a pretense and a sham and can not give parties any standing.

3. The evidence before us, circumstantial and otherwise, indicates that the parties endeavored to defeat Campbell and De Tan of their attorneys’ fees. For the accomplishment of that purpose, the parties hit upon the plan of pretending to institute proceedings in error in this court, and, by confessing error as to matters concerning themselves and over which there was no longer any controversy, secure a reversal of the judgment and a dismissal of the complaint. It was not intended to have a real review of the question of the allowance of attorneys’ fees. The proceeding was resorted to for ridding the company and the Coryells: of the attorneys’ fees allowed, and leaving the attorneys to look for payment for their services to their client, who confessed that she was going into bankruptcy. If is certain that Campbell and De Tan were led to believe, and confirmed in the belief by all the parties, plaintiff and defendants, that Miss Fawcett was a stockholder in the company, and as such prosecuted the 'action, which, through the work of the attorneys, resulted in a very substantial judgment in favor of the corporation. Certain it is that these attorneys were and are entitled to just compensation from some one. In the final disposition of the controversy, fair-dealing required that they be considered, consulted and given an opportunity to protect their rights, whatever they may be. The manner in which it was sought to do1 away with the rights of these attorneys was a fraud upon them, and the use of1 the forms of review, for the purpose of completing that fraud, was an imposition upon this court. This court has the right and it is its duty to protect itself from imposition and from being used as an instrument for the accomplishment of a designed wrong, by parties who invoke its. jurisdiction in bad faith. To retain this pretended proceeding in error in this court would be to condone wrong and to' say that’parties have the right to impose upon courts and use them for illegitimate purposes.

The least that should be done under all the circumstances as recited is to leave the parties in the situation in which they had placed themselves before they pretended to invoke the jurisdiction of this court. That can be accomplished by striking the confession of errors and ’dismissing the writ of error, and the same is accordingly done.

Writ of Error Dismissed.

Decision en banc.

Mr. Justice White dissents.