Eyster v. Gafe , 2 Colo. 225 ( 1873 )

Wells, J.

The petition must be denied. The issues were made in the district court and tried there. The only questions to be considered in this court arise upon that record. To admit a new party now, unless in substitution for a deceased person, or one adjudged a bankrupt since the judgment below, or the like, would violate the rule that only parties and privies to judicial proceedings may assign error therein. Inasmuch as the assignee was not a party below, he cannot be prejudiced by the judgment, and he ought not to be heard to question its regularity. If those interested in a litigation of this character desire to interfere therein, they should apply for permission to do so in seasonable time. The case of Herndon v. Howard, 9 Wall. 664, which was relied on at the bar, seems not in point. In that case, Herndon, who was defendant below, became a bankrupt after perfecting his appeal. His assignee was properly admitted in the supreme court. Here the bankruptcy occurred long before the action was brought, and the bankrupt never was a party.

Petition denied.