Miller v. Owens

Supreme Court of Colorado

Miller v. Owens

55 Colo. 88

CourtSupreme Court of Colorado

DecidedApril 15, 1913

DocketNo. 6988

StatusPublished

Cited by2 cases

This text of 55 Colo. 88 (Miller v. Owens) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Owens, 55 Colo. 88 (Colo. 1913).

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Opinion

Mr. Justice G-abbert

delivered the opinion of the court:

The judgment of the district court is right. It fairly appears from the pleadings that the very question upon which plaintiff relied to establish want of jurisdiction of the district court was presented to that tribunal in the action in which the judgment complained of was rendered, and ruled on adversely to his contention. This ruling is res judicata of the question which plaintiff now seeks to raise in the case at bar, and can only be reviewed on appeal or error from the judgment in the action in which this ruling was made.—McCord v. McCord, 24 Wash., 529, 64 Pac. 748; Hyatt v. Bates, 35 Barb., 308.

It also appears from the pleadings that if the ruling of the court on the subject of jurisdiction in the case in which the judgment attacked was erroneous, then plaintiff, by prosecuting an appeal from or writ of error to that judgment, could have had the identical question reviewed which he has- attempted to raise by his action to annul the judgment. He prayed and was granted an appeal, gave the required bond, but, according to the averments of his complaint, voluntarily abandoned it. From his replication it- appears that it was dismissed for failure to prosecute. For these reasons, he is precluded from resorting to equity to accomplish that which he could have accomplished by pursuing one or other of the remedies at law which the code affords.—Hoover v. Bartlett, 42 Oregon, 145, 70 Pac. 378; Flannaken v. Wright, 64 Miss., 217, 1 So. 157; Henion v. Pohl, 113 Ill. App., 100; 23 Cyc., 977.

[91]*91Or, as stated in 23 Cyc., at page 983: “Relief will not be granted in equity against a judgment at law where the party has an adequate remedy as to the matters complained of by appeal or error, and makes no effort to avail himself of it, or has lost such remedy by failing to take proper steps to secure or perfect his appeal or writ of error. ’ ’

The judgment of the district court is affirmed.

Judgment Affirmed.

Chief Justice Musser and Mr. Justice ITill concur.

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Mr. Justice G-abbert

delivered the opinion of the court:

The judgment of the district court is right. It fairly appears from the pleadings that the very question upon which plaintiff relied to establish want of jurisdiction of the district court was presented to that tribunal in the action in which the judgment complained of was rendered, and ruled on adversely to his contention. This ruling is res judicata of the question which plaintiff now seeks to raise in the case at bar, and can only be reviewed on appeal or error from the judgment in the action in which this ruling was made.—McCord v. McCord, 24 Wash., 529, 64 Pac. 748; Hyatt v. Bates, 35 Barb., 308.

It also appears from the pleadings that if the ruling of the court on the subject of jurisdiction in the case in which the judgment attacked was erroneous, then plaintiff, by prosecuting an appeal from or writ of error to that judgment, could have had the identical question reviewed which he has- attempted to raise by his action to annul the judgment. He prayed and was granted an appeal, gave the required bond, but, according to the averments of his complaint, voluntarily abandoned it. From his replication it- appears that it was dismissed for failure to prosecute. For these reasons, he is precluded from resorting to equity to accomplish that which he could have accomplished by pursuing one or other of the remedies at law which the code affords.—Hoover v. Bartlett, 42 Oregon, 145, 70 Pac. 378; Flannaken v. Wright, 64 Miss., 217, 1 So. 157; Henion v. Pohl, 113 Ill. App., 100; 23 Cyc., 977.

[91]*91Or, as stated in 23 Cyc., at page 983: “Relief will not be granted in equity against a judgment at law where the party has an adequate remedy as to the matters complained of by appeal or error, and makes no effort to avail himself of it, or has lost such remedy by failing to take proper steps to secure or perfect his appeal or writ of error. ’ ’

The judgment of the district court is affirmed.

Judgment Affirmed.

Chief Justice Musser and Mr. Justice ITill concur.

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55 Colo. 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-owens-colo-1913.

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