Boxwell v. Greeley Union National Bank

PLAINTIFF Boxwell brought this action against Ernest A. Morgan, the Greeley Land and Live Stock Company, the Greeley Union National Bank and other defendants who, if served with summons, did not appear in the action. The original complaint was amended and this amended complaint was further amended. As thus amended this pleading, in substance, states that in the year 1924, plaintiff Boxwell resided in the state of Iowa, and was there engaged in breeding Hereford cattle and other live stock, was familiar with values and productivity of Iowa lands but not with similar Colorado properties or with irrigation farming, all of which was well known by the defendant Morgan and the defendant land company, which was organized by and under his full control. In that year plaintiff was in Greeley, Colorado, and there met Morgan and, as the result of fraudulent representations, was induced to enter into a written contract with him and to sign a note and to engage with Morgan and his company in carrying on the live stock business on the ranch property in Weld county thus acquired, all of which was to the great loss and damage of the plaintiff.

The relief asked by the plaintiff is rescission and cancellation of the contract and note, and damages to him resulting from defendant's fraud. In the district court the defendants who appeared in the action, with the exception of the Greeley bank, filed their respective motions and special and general demurrers to the amended complaint, all of which were overruled, the trial court holding that as to these defendants the amended complaint stated a good cause of action. The defendant Greeley bank filed its own separate motions and special demurrers attacking the complaint, all of which were overruled. Thereupon the bank filed its general demurrer to the amended complaint as further amended, which the court sustained. The plaintiff declining further to amend or change his amended complaint, the court, after sustaining the general demurrer thereto, dismissed the action as to the bank on the latter's motion therefor. The present writ of error is by the plaintiff Boxwell against the Greeley bank as sole defendant in error, having for its object a review only of the order or judgment of the district court dismissing the action as to the bank.

After the district court had sustained this general demurrer of the bank to the plaintiff's complaint as amended, and dismissed the action as to the bank, it was orally stipulated by the parties concerned that if plaintiff should, as he did, elect to stand upon his amended complaint and should thereupon prosecute a writ of error from the judgment dismissing the action as to the defendant bank, which he has done by the present writ of error, the trial of issues to be thereafter joined in the said cause as against the other defendants, should be continued from time to time until the Supreme Court should determine such writ of error; and that such dismissal, in so far as it affects the defendant bank, is without prejudice to plaintiff's right to proceed in the case as against the remaining defendants, other than the bank, as he may be advised.

This court hitherto has not been confronted with a situation exactly like that which is exhibited by this record. There is no charge in the complaint that the defendant bank had any connection with, or any knowledge of, the alleged frauds practiced by Morgan and his company upon the plaintiff Boxwell. The bank is proceeded against on the alleged ground that several years after the perpetration of the alleged fraud of the defendant Morgan upon the plaintiff, the bank received from this defendant, as payment of his note to the bank as payee, moneys which in equity belonged to the plaintiff, being part of the money of which plaintiff had been defrauded by the defendant Morgan, all of which frauds the bank knew at the time Morgan paid his note.

[1-3] It has been repeatedly held that a reviewing court has the inherent authority to regulate its jurisdiction so as to prevent successive appeals from a judgment. 3 C. J., p. 348, § 97. Although the defendant in error bank in this writ of error has discussed the merits, it has observed in its brief that the writ of error is premature. Doubtless it may be true that both parties upon this review desire to have this court determine the propriety of the order of the district court dismissing the action as against the bank. Under the almost unbroken line of decisions we cannot with propriety do so, because the order or judgment, which the plaintiff in error has brought up for review, is not a final judgment, but interlocutory, to which neither an appeal nor writ of error lies unless some statute expressly authorizes it, and we have no such permissive statute in this state. The question here involved has been repeatedly decided by our own court and our Court of Appeals. In Dusing v.Nelson, 7 Colo. 184, 2 P. 922, this court, speaking on this point, page 186, said: "If the order entered in a cause does not put an end to the action, but leaves something further to be done before the rights of the parties are determined, it is interlocutory and not final. To be final it must end the particular suit in which it is entered." This case has several times been cited with approval by this court and our Court of Appeals. Rice v. Van Why,49 Colo. 7, 111 P. 599; County Court v. Eagle Rock Co.,50 Colo. 365, 371, 115 P. 706; Goodknight, Admr. v.Harper, 70 Colo. 41, 44, 197 P. 237; Peters v. Peters,82 Colo. 503, 507, 261 P. 874.

Hagerman v. Moore, 2 Colo. App. 83, 29 P. 1014, was an action brought upon a contract against three persons. It was dismissed as to only one of the defendants against whom rights were claimed. Judge Bissell in that opinion stated that if the rule were otherwise than that announced in the Dusing case, supra, there would be two appeals taken in the same suit to review two different judgments rendered in the same action. So in the case now before us. The dismissal of the suit as to the defendant bank did not determine the merits of the controversy at all, and it did not end this suit, and such was the view of the parties themselves in the district court when they stipulated that until final decision of the Supreme Court on this writ of error was had, further proceedings in the district court would be suspended with the right of the plaintiff thereafter to proceed further in the case on the other part or fragment thereof as to the alleged frauds perpetrated on the plaintiff by the defendant Morgan.

It would seem that no further discussion or citation of authorities is necessary, but we desire to cite and briefly comment upon some other decisions which bear upon the question here involved. In the opinion in City of Batesvillev. Ball, Ann. Cas. 1913C, p. 1317, there is a note in which various decisions are commented upon in line with our own decision in Dusing v. Nelson, supra. It is apparent from a reading of the complaint in the action now before us that there are two inseparable parts or parcels of the case: the first and main one being the allegations of the plaintiff Boxwell tending to show, if true, that the defendant Morgan and his company had caused him serious losses as the result of Morgan's frauds practiced upon him; the other part of the case, which is inseparable, is the alleged receipt by the defendant bank from the defendant Morgan of moneys in payment of his note to the bank, which at the time of the receipt thereof the bank knew in equity belonged to the plaintiff. In no event could the defendant bank be held liable until and unless the plaintiff has established his cause of action as against Morgan and recovered a judgment against him. It would be idle, therefore, for this court, even if the order or judgment here in question constituted a final judgment, to pass upon the part of the case which is now before us, because the defendant bank's liability, if any, to the plaintiff depends altogether upon plaintiff's success as to that part of the case which seeks recovery of judgment against Morgan. In Owens v. Mitchell,33 Tex. 225, it was held that in a suit against several defendants a judgment sustaining a demurrer of some of the defendants to the petition and dismissing the case as to them, but leaving it undisposed of as respects the defendant who did not demur, is only an interlocutory judgment from which no appeal lies. In Mayor, etc. v. Lamb,60 Ga. 342, it was held that an order dismissing certain parts of a bill in equity is not such a final disposition of the cause as will entitle a plaintiff to a writ of error. In 3 C. J., p. 355, § 109, it is said that since a party as a general rule can appeal only from final judgments, he may not divide a case into fragments or parcels and appeal from them separately.

[4, 5] Doubtless there are cases to the effect that where there are two or more parts or parcels of a cause, wholly distinct one from the other, and severable, a writ of error may lie to a judgment of one part before the other is determined, but there is no case to which our attention has been called, nor has our search revealed one, which holds that where, as in the case at bar, there are two parts of a cause inseparably connected one with the other, a review of an order of dismissal as to one can be had before the other is determined. In 2 R. C. L., under the title "Appeal and Error," beginning at page 39, sections 21 to 25, both inclusive, will be found a discussion of the question here involved, and many cases are cited. Section 24 states the general rule, to which many decisions are cited, that a judgment or decree is not final which settles the case as to a part only of the defendants.

[6] In 1 Freeman on Judgments (5th Ed.), p. 43, § 26, the learned author says: "Sometimes several issues of law and of facts are presented for the consideration of the court in the same suit or proceeding. In such case there can be no judgment from which an appeal can be taken while it remains necessary for the court to determine some issue of law or of fact." In section 28 the author quotes the following from the decision of the Supreme Court of the United States in Heike v. U.S.,217 U.S. 423: "It is true that in a certain sense an order concerning a controlling question of law made in a case is, as to that question, final. Many interlocutory rulings and orders effectually dispose of some matters in controversy, but that is not the test of finality for the purposes of appeal or writ of error." And the author adds: "A final judgment is one which terminates the litigation between the parties and leaves nothing to be done except the ministerial act of execution." In section 33 Mr. Freeman, further discussing the question of the nature of such orders, says: "But in all cases where further proceedings are to be taken, or further orders of the court are necessary, the judgment cannot be treated as final, even for the purposes of appeal, unless it determines the issues involved in the action."

It follows that the order of the district court dismissing this action as to the defendant bank was not a final judgment to which a writ of error lies. It therefore is dismissed at the costs of the plaintiff in error. The dismissal, however, will not be taken to preclude the rights of the parties to raise the particular questions presented in this record. Further proceedings below, if any, must not be inconsistent with the views expressed in this opinion.

Writ of error dismissed.

MR. JUSTICE HILLIARD dissents.