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between the plaintiff and the defendants ap- the legal proposition is necessary, for by a pearing at the trial. The costs of this re- recent decision of this court it was decided view should be apportioned in the same way. that under such a state of facts the execuReversed in part, and cause remanded. tion may not issue. Sundin V. Frost, 71
Colo. 367, 206 P. 1071. Plaintiff, however, ALLEN and BURKE, JJ., concur.
cites cases from other jurisdictions and Brown v. Bell, 46 Colo. 163, 103 P. 380, 23 L. R. A. (N. S.) 1096, 133 Am. St. Rep. 54, upon which he relies, and which he says dis
tinguish this from the Sundin Case. The REED et al. v. FLOOD et al. (No. 10811.) difference between the Brown-Bell Case and (Supreme Court of Colorado. July 7, 1924. the Sundin Case is that in the former the Rehearing Denied Nov. 10, 1924.)
transcript of the justice court judgment was
filed in the district court within a year after Execution 75-Where action on judgment its rendition, and the judgment was then a
of justice of peace, filed in office of clerk of live one, while in the Sundin Case the judgdistrict court, was barred, execution could ment was not filed in the district court until not issue on judgment.
Where action on judgment of justice of the about 10 years after its rendition. In both peace, filed in office of clerk of district court, cases execution was issued after the bar to was barred by statute of limitations, execution an action on the judgment had fallen. The could not thereafter issue on such judgment. reasoning of the court in the Sundin Case,
and the cases upon which reliance was there Department 3.
had as authority, clearly discloses that the Error to District Court, City and County of court, sitting en hanc, was of the opinion Denver; Julian H. Moore, Judge.
that a judgment rendered in a justice court,
though transcript thereof is within its life Action by A. H. Flood and another against filed in the district court, is barred by the George L. Reed and another. Judgment for 6-year statute of limitation, reckoning from plaintiffs, and defendants bring error. Af
the day of its rendition, and not from the firmed.
day of such filing, and no action thereupon Tolles & Cobbey, of Denver (Rice W. may thereafter be maintained; that at the Means, City Atty., of Denver, of counsel), for expiration of the 6-year limitation the judgplaintiffs in error.
ment is dead, and, as the right of action George A. Carlson and W. R. Ramsey, both thereon is barred, no execution could legally of Denver, for defendants in error,
issue after the judgment is dormant. In the
Sundin Case the court said: CAMPBELL, J. The plaintiff Reed recov. "The question to be determined is whether ered a judgment in the justice court in May, or not an execution can be issued on a judg1910, against the defendant Flood. Within
ment of a justice of the peace, filed in the office three years thereafter he filed a transcript of of the clerk of the district court, after the time
at which an action on the judgment is barred the judgment in the office of the clerk of the
by the statute." district court. In July, 1923, more than 10 years after the rendition of the judgment, That is the precise question for decision Reed caused an execution on this judgment here. This court in the Sundin Case not to be issued out of the district court, and only intended to, but did. decide this very the sheriff thereunder levied upon real estate proposition, and the decision is contrary to in the county belonging to the defendant the contention of the plaintiff in error. The Flood. Flood thereupon brought an action in writer of this opinion concurred in the deequity to enjoin the threatened sale, and, cision in the Brown-Bell Case. That' was a upon final hearing, the court made perma- decision by a department of the court. The nent the temporary injunction theretofore Sundin Case was decided by the court en issued, ordered the judgment to be canceled, banc, and until the court en banc rules otherand satisfied and restrained further proceed-wise the decision in the Sundin Case, being ing under it.
the last expression of this court, and being The question for decision is whether an antagonistic to the Brown-Bell Case, must be execution may be issued on a judgment of a followed. The judgment of the district court Justice of the peace which has been filed in now reviewed, being based upon and followthe office of the clerk of the district court ing the Sundin Case, is therefore aflirmed. after an action on the judgment is barred by the statute of limitation. No discussion of) TELLER, C. J., and SHEAFOR, J., concur.
On For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes
Action by Elizabeth Hammond against Dr. BARTLETT et al. v. HAMMOND. S. R. Bartlett and another. Judgment for (No. 10849.)
plaintiff, and defendants bring error. Re(Supreme Court of Colorado. Oct. 6, 1924. versed and remanded, with instructions. Rehearing Denied Nov. 10, 1924.)
Charles R. Bosworth, of Denver, for plain1. Trial em335—Verdict against several joint
tiffs in error. tort-feasors should be single and in single
Tom L. Pollock and Robert Emmet Lee, sum.
both of Denver, for defendant in error. Since there can be no apportionment of damages between defendants, jointly liable as tort-feasors, when action is against several joint
CAMPBELL, J. This is an action by Eliztort-feasors, if finding is against all, verdict abeth Hammond, plaintiff below, defendant should be single verdict against all for single in error here, against the plaintiffs in error, sum.
defendants below, Dr. Bartlett and Mrs. Jos
eph, for damages for alleged negligence of 2. Judgment 239—Rendition of joint judg
ment on separate verdicts against joint tort. the defendants arising out of an automobile feasors held improper.
collision in the city of Denver at the interIn action against joint tort-feasors, where section of East Colfax avenue and the west jury brought in verdict for same amount against roadway of Monaco boulevard. Plaintiff each defendant, court might have required joint asks for actual damages for injury to her verdict, but could not, without correcting ver- person, her automobile, for exemplary damdicts (if it had power to do so), render a joint ages, and a body judgment. Each of the judgment for amount included in one verdict.
defendants filed a separate answer, in which 3. Trial On 340(1)-Court may not correct ver- the material allegations of the complaint are dict in matter of substance.
denied and contributory negligence of the Court may not correct verdict in matter of plaintiff is alleged. In a counterclaim, each substance.
defendant asks for like damages for plain4. Municipal corporations C705 (2) – Each tiff's negligence. To each of these answers
driveway of street, composed of two drive and counterclaims plaintiff filed a separate ways with boulevard between, is separate replication, denying the charges of neglistreet as affects duty of driver in making left. gence against her, but there is no plea in eihand turn about "center of Intersection."
ther replication of contributory negligence Under C. L. & 1270 (f), and Municipal Code of either defendant. As the result of the of Denver 1917, $$ 1958, 1977, 1986, as relate trial, the jury returned separate verdicts to vehicle drivers' duty to keep to right of cen
against each defendant, reading: ter of intersection in making left-hand turn, where street consists of two roadways separat "We, the jury, find the issues herein joined ed by boulevard, each roadway constitutes sep- for the plaintiff and against the defendant Dr. arate cross street, when determining point Bartlett, and assess her damages at the sum about which a left-hand turn is to be made, in of seventeen hundred dollars and do/100 cents view of C. L. 1270 (h).
"We, the jury, find the issues herein joined 5. Municipal corporations Ca 705(2) — Vehicle
for the plaintiff and against the defendant Mrs. driver held not to have kept to right of street Joseph, and assess her damages at the sum of intersection in making left-hand turn, and seventeen hundred dollars and no/100 cents negligent as matter of law.
($1,700.00).” One making left-hand turn into a cross street, which consisted of two driveways with
When the verdicts were returned by the boulevard between, who failed to keep to right of point of intersection of street on which he had jury, the court ordered them recorded, and approached and driveway into which he turned, they were recorded, and the defendants, and held not to have kept to right of intersection, each of them, by counsel then objected to and was negligent as matter of law, in view of the verdicts, both as to substance and form, C. L. $$ 1270 (f), 1270 (h), and Municipal which objections were repeated and included Code of Denver 1917, $$ 1958, 1977, 1986. in their separate motions for a new trial, 6. Municipal corporations Cm705(2)-Defend after the court, without questioning the
ant, traveling north on west side of street, jury, and after they were discharged, assumconsisting of two driveways with boulevard ing from the several verdicts themselves that between, held negligent as matter of law. the jury had found, and intended to find,
Defendants driving north on west driveway damages of $1,700 only against both defendof street, consisting of two driveways with ants, thereupon entered one joint and severboulevard' between, held, under C. L. $ 1270 (h), al judgment against both in the amount of and Municipal Code of Denver 1917, § 1977, negligent as matter of law, where evidence of de
$1,700 and costs, reading: fective condition of east driveway was insuffi "It is considered by the court that the said cient to excuse their failure to use it.
plaintiff do have and recover of and from the
said defendants, Dr. S. R. Bartlett and Mrs. Department 3.
J. B. Joseph, and each of them, the sum of Error to District Court, City and County seventeen hundred dollars ($1,700), her damof Denver; Clarence J. Morley, Judge. ages so by the jury aforesaid assessed, together
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
with her costs in this behalf laid out and exoj overrules the objection, a writ of error will pended.”
lie. The real objection here, however, is The defendants have jointly sued out this that, if the court bad power to change a verwrit of error.
Each separate motion for a dict, either in substance or form, it did not new trial has 34 grounds, and each separate do so. The two separate verdicts still stand assignment of errors contains 60 specifica- as they were returned by the jury, and are tions and numerous subdivisions. In view so recorded. The unquestioned rule is that of our conclusion that both the plaintiff and
a judgment rendered without findings of the defendants, and each of them, were
fact by a court or a verdict of the jury is guilty of negligence which directly contribut- fatally erroneous. And, as said by the aued to the collision, that they were mutually thor in 33 C. J. § 106, p. 1169: at fault, and for that reason plaintiff's ac “There is no principle of law more firmly estion, as well as defendants' counterclaims, tablished than that the judgment must follow must be dismissed, many of the questions, and conform to the verdict, decision, or findings
in all substantial particulars." some important and difficult, argued ably by counsel on both sides in their briefs, require And: no consideration.
"Where the verdict is joint, the judgment  1. Notwithstanding this conclusion, must be joint, unless plaintiff remits the damwhich of itself sends all the parties out of ages as to one of the defendants, or dismisses court, a ruling of the trial court which in the action as to him, or the court grants him a volves an important question of practice new trial. Where the veruict is geveral, the should be considered before discussion is judgment must be several. The proper remedy had of the vital and controlling question of in case a judgment does not conform to the their mutual negligence. When an action is verdict is by a motion to modify the judgment,
or by appeal or writ of error." against several joint tort-feasors, if the finding is against all of them, the verdict should
[2, 3] The defendants tried, without avail, be a single verdict against all for a single to have the proper correction made by the sum and not a several verdict against each trial court. À writ of error was then their defendant either in the same or separate only remedy. This joint judgment does not
There can be no apportionment of conform to the separate verdict or verdicts. damages as between defendants jointly lia- it is a joint judgment rendered on two sepble in such a case. When the two separate arate verdicts, and the fact that in each ververdicts were returned into court, objection dict the finding of damages is the same does thereto both as to substance and form was not change the principle involved. The court unsuccessfully interposed by each defendant, might, before the jury was discharged, have and renewed in a motion for a new trial. instructed them to disregard the separate When the verdicts were returned they were verdicts and return a joint verdict in such ordered by the court to be recorded, and sum as they might find the plaintiff was enwere recorded, and the jury were dismissed titled to as against both defendants; but it and separated. The court did not at any was improper for the court, without correcttime correct the several verdicts, either in ing these verdicts, if it had the power to do substance or form, but, without learning so, to render a joint judgment and insert from the jury their intention in returning therein the amount included in one verdict. several verdicts, instead of a single one, or It is not necessary here to determine whethin what sum they intended to find the total er the defendants could be heard with their damages to be, assumed for itself that the objection, as matter of right, had the court, intention of the jury was, and that the two in a proper way, corrected the verdicts, since several verdicts meant, a finding of $1,700 each verdict is in the same sum and the only against the two defendants, and not $1,- joint judgment is for only one of them. The 700 against each defendant as the verdicts court, however, may not correct a verdict in on their face show, and upon such assump- matter of substance; otherwise, the court tion the court, without reforming or chang. could arbitrarily set aside a verdict of a ing the several verdicts, rendered a single jury in its entirety, and make a contrary judgment for $1,700 against both defendants finding in a law action for itself, and render jointly and severally. That the proper prac- judgment upon it. Some of the authorities tice was not observed, amounting to an ir- in point are 23 Cyc. p. 820 et seq. ; City of regularity, is beyond question. There may Birmingham v. Hawkins, 196 Ala. 127, 72 be, and probably are, authorities which hold So. 25; Layman v. Hendrix, 1 Ala. 212; that, if error, it is prejudicial to the plain- Marriott v. Williams, 152 Cal. 705, 93 P. 875, tiff here, and not to the defendants who may 125 Am. St. Rep, 87; Chrudinsky v. Evans, not complain, since a joint judgment against 85 Or. 548, 167 P. 562; 38 Cyc. p. 1905 (7); the two for $1,700 caused no injury to ei- Forslund v. Swenson (Neb.) 192 N. W. 619; ther, as there was a several verdict against Price v. Clapp, 119 Tenn, 425, 435, 105 S. W. each in the same sum. Other authorities 864, 123 Am. St. Rep. 730; Lake Erie & W. are that either the plaintiff or the defendant R. Co. v. Halleck, 78 Ind. App. 495, 136 N. may object in such a case, and if the court E. 39.
(230 P.) In the last case there was but a single ver- , street which joins another at an angle, whether dict, but the finding was against both of the it crosses the street or not." two defendants, and the damages against
Section 1986 of the Code is: one of them was for one sum and against the other for a different sum. The combined
"The driver of any vehicle shall before turnsums equalled only the amount of the dam ing make sure that such movement can be
executed in safety. ages assessed by the jury, and so stated to be in the verdict, against both the defend It was important, as bearing upon the care ants, and the court disregarded the attempt- or lack of care of the plaintiff, to know the ed apportionment as surplusage, and ren- location of the meeting point of the medial dered judgment on the verdict for the single lines of these two highways. The court insum. The reasoning of the court would structed the jury as follows: make improper the action of the trial court
"Instruction No. 5. The court instructs you in the instant case.
that the center of an intersection means the 2. The collision, as stated, was at the in- meeting point of the medial lines of the two tersection of East Colfax avenue and Mon- highways traversed, or about to be traversed, aco boulevard, at a point south of the center by a vehicle making a turn from one to the line of Colfax avenue and east of the center other of the said highways. For the purpose line of the west roadway of Monaco boule of determining such intersection in the case vard, near the southeast corner of the
at bar you will find the meeting point of an
imaginary line drawn east and west through streets. Monaco boulevard consists of a
Colfax avenue and another imaginary line wide parking in the center, which is set out drawn north and south through the center of to grass and shrubs, with a roadway on Monaco boulevard; the center of Monaco boule. each side thereof for purpose of travel, des- vard being half the distance between the westignated, respectively, as east roadway and ern or outer line of the west roadway of the west roadway. The parking or parkway, said boulevard and the eastern or outer line apparently wider than either roadway, is not of the east roadway. In other words, you are used for travel, but is ornamental only. Col- to consider the said boulevard for the purpose
as one street only." fax avenue runs east and west; Monaco boulevard, north and south. At the time of  We think this instruction is erroneous. the collision the plaintiff, who was driving It will be observed the court considers that her own automobile, was proceeding west, Monaco boulevard, as a highway for vehicuand she turned her car to go south from lar travel, extends from the east boundary East Colfax avenue into and along the west line of the east roadway to the west boundroadway of the boulevard. The defendants ary line of the west roadway; in other at the time were in an automobile of defend- words, that it includes, for purposes of veant Joseph, driven by Dr. Bartlett, and were hicular traffic, not only the separate roadgoing north and on the east side of the west ways on each side of the parking, but the roadway. Neither of the cars was driven parkway itself. We think that, so far as rapidly. A good view from each could be concerns "center of intersection,” the east had, and the occupants of each car might and west roadways are separate highways have seen, if they did not see, the motion, or streets. Vehicles are not allowed to drive direction, and apparent purpose of the oc over and along the parkway or parking cupants of the other. C. L. 1921, § 1270 (1), place of Monaco boulevard in either direcp. 498, provides :
tion, and when one turns from Monaco boule. "All vehicles approaching an intersection of vard into Colfax avenue he may not drive a public highway, with the intention of turn- over and along the parkway on either side ing thereat, shall in turning to the right keep of Colfax, but only into and along the east to the right of the center of such intersection, or west roadway. Vehicular traffic is re and in turning to the left shall run beyond the stricted to travel to the parts of the boulecenter of such intersection passing to the right vard intended for travel; for those travelthereof, before turning such vehicle toward the left. For the purpose of this subdivision the ing north to the east roadway, and for those 'center of such intersection shall be held to traveling south to the west roadway. C. L. mean the meeting point of the medial lines 1921, § 1270 (h); Denver Municipal Code of the two highways traversed by the vehicles 1917, § 1983, p. 831. making the turn."
In drawing an imaginary line north and
south through the center of the parking of Section 1977 of the Municipal Code of Monaco boulevard the court was not justiDenver of 1917 reads:
fied. In determining the center of intersec"All moving vehicles shall be driven in a sin- tion of the highways, so far as concerns vegle file, except when passing another and shall hicular traffic, the east roadway and the keep to the right of the center of the street." west roadway are, as stated, separate high
ways, "irrespective of the parkway. In asSection 1958 of the Municipal Code reads: certaining the center of intersection of the “The term “street shall apply to that part west roadway of Monaco boulevard and East of the public highway intended for vehicles. Colfax avenue, this imaginary line should The term 'street intersection' shall apply to any be drawn north and south through the cen
ter of the west roadway half way between , may never, in any circumstances, be driven its west and east boundary line. If the on a street in a direction prohibited by statwest roadway of Monaco boulevard is to be ute. Possibly the present laying of street considered as one highway intersecting with railway tracks in East Colfax avenue and East Colfax avenue, and the east roadway the digging of gas mains in East Fourteenth is to be considered another highway inter- avenue in the city of Denver, whereby onesecting therewith, as we think is imperative, half or more of the width of each highway then the plaintiff was guilty of negligence on the south side is occupied by the imas matter of law. For in driving her car to provement, to the exclusion of vehicle traffic, the west, as she approached the west road- furnishes an illustration where travel in the way, she did not keep on the north side of wrong direction might not be deemed negliEast Colfax avenue, or, if she did, still she gence, or, if so, excusable or not actionable. did not, before turning to her left to go But defendants' evidence in support of south, pass to the west of the medial imagi- their excuse for failing to observe the law of nary line drawn north and south through the road as to direction of travel is not of the west roadway at its intersection with such definiteness, strength, or sufficiency to East Colfax avenue; but, on the contrary, justify us in setting aside the finding of the according to the manifest weight of the evi-trial court that it was too weak and unsubdence, she drove her car, as she was ap- stantial to bring the case within the claimed proaching the east boundary line of the west exemption from, or exception to, the general roadway, on the south side of East Colfax rule that was applied by the court. We avenue, and unquestionably was on the east must therefore hold that the defendants side of the center of the west roadway, in- were negligent as matter of law for violatstead of being on the west side thereof, at ing the law of the road in driving in the the time she made the turn diagonally from wrong direction. It thus appears that all of East Colfax avenue into the west roadway these parties, at the time of the collision, and collided with defendant's car. In other were guilty of negligence as a matter of law; words, she disobeyed the positive directions that they were mutually at fault. The or provisions of both the state statute and plaintiff was not entitled to recover under the municipal ordinances of the city of Den- her complaint, and the defendants were not ver, the law of the road.
entitled to recover under their counterclaims.  It is also to be observed that it was in such circumstances the court should have plaintiff's duty, under section 1986 of the ordered the complaint and the counterclaims Municipal Code to make sure before turning dismissed. It properly dismissed the several that the movement could be safely executed. counterclaims of the defendants, upon the exHow she could imagine, in the manner she press ground that each of them, as a matter drove her car, that she could safely make of law, was guilty of negligence that conthe turn is not apparent. Under these stat-tributed to the injury. Had the court not utes and ordinances plaintiff was guilty of made the mistake of assuming, for the purnegligence as a matter of law, and the court pose of determining the center of intersecshould have so declared and taken her case tion of the highways, that it was an imagi. from the jury.
nary line drawn through the center of the  The defendants were driving north on parkway, and had instructed, as would be the west roadways, and on the east or right proper, that the west roadway along which side, as they approached its intersection the defendants were driving was to be conwith East Colfax avenue. The law of the sidered as a highway intersecting with East state and the municipal ordinance require Colfax avenue, without respect to that porone traveling north on Monaco boulevard, tion of Monaco boulevard consisting of a where, as here, the two roadways are divid- parkway and an east roadway, doubtless it ed longitudinally by a parkway, to drive on would have dismissed plaintiff's action, as the roadway east of the parkway, and one well as defendants' counterclaims. For it is too traveling south to drive on the west road-clear from the evidence to admit of question way. This requirement has no bearing on that the plaintiff and defendants were both the location of the medial line of Monaco guilty of negligence as matter of law in drivboulevard. The defendants were thus violat- ing, as they did, contrary to the provisions ing the provisions of the state statute and of the state statutes and the municipal ordithe municipal ordinances of the city. The nances. If they had been in a place where court properly instructed that they were the law says they might lawfully be, this negligent as a matter of law. They claim, collision would not have happened. however, that they were justified in driving Because of our conclusion that, under the north along the west roadway, because the evidence, plaintiff has no cause of action east roadway, the one designated by law for against defendants, or either of them, and north-bound travel, was then, though not im- neither of the defendants has a cause of acpassable, not in fit condition for vehicle traf- tion against the plaintiff, all the parties befic because of work and repairs thereon re- ing at fault, the judgment is reversed, and cently made, of which the plaintiff had the cause remanded, with instructions to the knowledge. We do not say that a vehicle district court to dismiss plaintiff's action