Burns v. National Mining, Tunnel & Land Co. ( 1910 )

Mr. Justice Gabbert

delivered the opinion of the court:

Since this case was lodged here on appeal, the appellees have filed a motion to dismiss it, based upon the ground that since the appeal was taken a settlement of the subject-matter of controversy has been effected. If there has been such a settlement that the rights of the parties will not be affected by any judgment which this court might render, the appeal should be dismissed, for its province as a court of review is to decide and settle controversies by a judgment which will fix the rights of the parties before it, and not to determine either questions of law or fact which cannot affect them. — Floyd v. Cochran, 24 Colo. 489. In other words, where the disputes between parties have been settled pending appeal, this court will decline to determine any of the questions .upon the record, and will dismiss the appeal. — Hunter v. Dickinson, 3 Col. App. 372. But, in the circumstances of this case, a motion is not the proper procedure, for the reason that the matters upon which appellees rely in support of their motion to dismiss the appeal do not appear of record. Matters may occur subsequent to the judgment rendered by the trial court which operate to bar the right to have such judgment reviewed either on appeal or error. "When such matters appear of record, the question is properly raised by motion to dismiss, but when they do not so appear it must be raised by a plea in bar of the proceedings pending on appeal or error. — Atkinson v. Tabor, 7 Colo. 195.

The motion to dismiss is denied, with leave to appellees to file a plea in bar within twenty days from this date.

Chief Justice Steele and Mr. Justice Mussek concur.