(Oircuit Oourt, D.Oolorado..May 24, 1887.)
JUDGMENT"":'SETTING ASIDE IN EQUITY-CO:RRffi..rrON OF JUDGE.
The trial went to the office of the defendant's counsel to notify him to be prMent In court at a certain hour, when he would discharge a hung jury, but merely sent a message to the same to the plaintiff's counsel. On the second trial, which was heard without a jury, he spoke harshly to the . plaintiff for a formal omission bv her, when taking the oath, and he decided the case in favor of the defendant, upon the conclusion of one argument for the plaintiff,without hearing for the defendant or further argument for plaintiff from her prinCIpal counsel. The defendant's counsel was the seen durilig the progress of the case in the judge's chambers court'room; where he WlUl w;aiting for court to open. Held, in a SUIt .in equity by the plaintiff to set the judgment aside, because of the corruption of the judge, that these facts showed not even the slightest misconduct upon his part.
In EqUIty. T.A. Greim andH, B. Johnson, for complainants. T. D. W. Yonley and N. Stevens, for defendants.
BREWER, J., (HALLETT, J., concurring.) The facts in this case are as follows: In the fall of 1883, Mrs. Newton, one of the complainants, was the owner·of a ranch near the city of Denver, which was subject to two liens of $6,000. Negotiations were had between her, her husband acting as her agent, and one E. F. Lamb, which resulted in an agreement for the conveyance of this ranch at an agreed price of $15,000; purchaser to assume the payment of the liens of $6,000, and to pay her the bal.ance in dry goods. In pursuance of this agreement, a deed was made by her and.her husband to Mrs. Vira Lamb, the wife of E. F. Lamb. The dry goods, which were packed in boxes stored in a warehouse in Denver, were delivered to her, and by her disposed of at private sale and by auction. Within 14 days after this conveyance, Mrs. Lamb and her busband conveyed the land to J. Jay Joslin, who thereafter conveyed it to the Arapahoe Land & Cattle Company. As a matter of fact, Joslin was the owner of these dry goods, and Lamb in the transactions was acting simply as his agent. Mrs. Newton, on examination, found the goods to be far from such as she claims they were represented to be. Nevertheless she sold and disposed of them as heretofore stated. She daims that she was ignorant of the fact that Joslin was principal, but supposed all the time that the goods belonged to Lamb, and that, after she had discovered the inferior quality of the goods, she instituted no suit, because she found that Lamb was insolvent; but, aiter some months, ascertaining that Joslin was the real party in interest, she commenced an action against him in the district court of Arapahoe county for a breach in warranty of these goods. Answer was filed, and the cause went to trial, which resulted in a verdict in her favor. The judge of that court set aside the verdict. Thereupon she dismissed that action, and commenced a similar action the superior court of Denver, in which
she claimed that there was a fraudulent warranty, and sought to recover damages therefor from J:oslin. The cause was tried first by a jury, but the jury hung, and were discharged. At the succeeding term a jury was waived by consent of parties, and the trial was had before the judge of that court without a jury, and was entered in that trial in favor of the defendant; and now the complainfll1ts, Mr. an4" Mrs.. Newton, come into this court, and file a bill making Mr. and Mrs. Lamb. J. Jay Joslin, and the Land and Cattle Company defendants,in which bill is narrated all the frauds which' they claim were perpetrated on them by Joslin through his agent, Lamb, and the various transfers of title from Mrs. Lamb to Joslin, and from thecompau.Y, and the circumstances of the trial above referred to; and then it aU(jges' that that judgment shouldqe regarded as null and void, because obtained by perjury, and the corr:uption and bribery of the judge. ' As might be expected, a very bitter and acrimonious controversy has followed these charges. The matter which, of course, first arrests attention, is that of the alleged corruption and bribery of the judge of the superior court; for, if these grave charges were true, not .only would the judge himself receive the just condemnation of every honest man, but in every court the judgment which he had sought by his wrong to lift up as a barrier to truth and justice would. be wholly disregarded. Such charges are grave ones, and ought not to be lightly made. Upon what evidence are they based? First, it is (jlaimed by .counsel for the complainants that the judgment itselfis such an outrage that no honest man could have pronounced it; and, second, he says that the surrounding circumstances are such as indicate corruption. Noticing the second matter first, I premise by saying that I have no reason to doubt. the good faith of Mr. Green, the counsel for complainants, or that he is acting otherwise than from a sense of duty. He feels, doubtless, that his client has been [grossly wronged,and, failing·of the redress which he believes she is entitled to, he fancies that the judge who decided against him is party to the wrong, and construes the most innocent and ordinftry acts into evidence of such participation. While concsding good faith to Mr., Green,I am compelled to add that the mat·ters to which reference is made as, eV"idences of wrong-doing are so frivolous and trifling that I am amazed to hear them mentioned. Let me mention them., On the first trial, while the jury were out, it appears that Judge RODGERS called a moment at the office aOhe counsel for the defendant. As explained, it appears that, when the court took a recess at 12 o'clock, the jury having been out all night, Judge RODGERS said that he would call at the offices of the respective counsel, and notify them to ,be present at2 o'clock, as he thought he should then discharge the jury. . Just .nfter he left the court-room, the jury sel1lt him a communication, declaring their inability ita agree. The bailiff followed him, overtook him at the office of Mr. Marsh, defendant's counsel, and gave him this communication. On reading it, he informed Mr. Marsh, requesting him to attend at 1 o'clock,and prepared a note, which he sent to Mr. Green by the bailiff, asking him also to be present at 1 o'clock.
NEWTON '/1. JOSLIN.
Somehow or other, the note failed to reach Mr. Green; but, as Mr. Green's partner was present at 1 o'clock, the Jury was called in and discharged. At the last trial, when Mrs. Newton was being sworn, before the oath had been fully administered, she was dropping her hand, and the judge spoke to her sharply and angrily, as she says, and told her to keep her hand up. Further, on the last day of the trial', during the noon intermission, Mr. Marsh, the defendant's counsel, was seen in the chambereof the judge adjoining the court-room. , Thejudge's room was separated from the sheriff's office by a thin partition, running only part way up to the and the doors were standing open. The bailiff, who during the intermission had locked the doors of the court-room so that no one could enter, when he call1eback found Mr. Marsh in the judge's room; thus waiting for the opening oUhe court-room. Further, after the testimony wasfiniElhed, one of complainant's counsel made his argument,and then, without waiting for further argument, the court decided the case. Now,tbese are matters which are gravely presented to this court 8." evidenees of corruption. It is true counsel for complainant says that, if the, judgment had been· right, these facts would not be significant; but,as he says, the judgment was wrong, and therefore these matters are evidences of corruption. Could anything be more frivolous? Putting one aide all mattel1s of explanation, could any suspicion arise from such conduct? Does not every lawyer know that the chambers of a judge are open, and is he not going there freely, either for business or social purposes? The learned counsel for complainant, who presents these matters, has more than once, in my brief visits to Denver, called alone'at'my chambers for business and social purposes; and I should have felt humiliated and insulted if I had for one moment entertained the thought that he supposed that by such visits he was exposing me to the charge of corruption, if I happened to decide any cases in his favor at or about the time of such visits. As I understand the matter, it is the right of a judge, nay more, I think it is his duty, to maintain pleasant pavsona}, social relations with the members of the bar practicing before him; that he should maintain such relations as to feel that he ispersontill.y welcome at their offices, and that they are free to visit him; and I am sure that no man, unwarped by feeling, would think of mentioningthese matters as evidences of corruption. Nay, more: if I understand anything of human nature, these very facts are strong evidences that' there was no corruption. The conscious scoundrel magnifies little matters. He avoids everything that he imagines can in any manner be construed into evidence of guilt; and, if Judge RODGERS had been corrupted to pronounce this judgment. it is certain that he would, with the utmost care, have avoided any visible communicatioos with the man who was corrupting him. He would scrupUlously and carefully have .avoided every llonnection with him which might come to the knowledge of others; and on the trial of the case, instead of stopping at the close of the one argument, he,would, with apparent patience; have Jistened to ever,ything tha.tall:the cOl,luselbadto offer. Instead of speaking sharply to the
complairlant,', his' care"1iould have' been to exhibjt'the utmost politeness. Every act which is referred to, 'so far :from indicating'cdrruption, is potelltevidence of conscious integrity and rectitude of purpose. Was it strange that he decided the case after listening to one argument? Twice all this testimony had been presented to him. Once he had listened to the a1"guments of both coi1nsel, and how could it be expected otherWise than thatbismind had com\:l to some conclusion? And yet the fact that he failed, on the trial, to listen to two speeches, is presented as evidence that he was consciously 'purposing wrong. My experience, and it has been no brief one, has shown me that he who' makes the most complaint at not being heard sufficiently is the one whose talk contains least of argument, and helps the least, to a determination of the questions presented. I have noticed these matters more at'length than they deserve, but the gravity of the charges seem to compel at my hands this comment upon the evidence. I can only say that it is aU more baseless than the shadowy fabric of a dream. . As I have said, counsel concedes that these matters; apart from the case itself, are insignificaritj and rests his case mainly on what he considers the gross outrage of the dE'cision, and insists that this,'in itself, is alone enough to justify this court in pronouncing the judgment corrupt. He puts this illustration: If a robber should assault on the streets, and take from me my money, and I should sue hint for that money, and thejudgeshould render a judgment in fav()r of the defendant, could such judgment be accounted for on any honest hypothesis? I take the illusif he failed to commence tration which he suggests, and say to him his action until after the statute of limitations had wrought a bar, the judge who would not render a judgment in favor of the defendant, notwithstanding the enormity of the original outrage, would be unworthy of his place on the bench. 1 do not think it would be proper for me to express my opinion as to the merits of that case; this court cannot sit as a court of error. If mistakes were made, the supreme court of Colorado is the tribunal to correct them, ahd its high reputation for purity and ability is guaranty that any mistake of the trial judge would not fail of correction. I may be permitted, however, to notice this: Counsel assumes that his client's statements of the representations,aud her knowl. edge of the ownership, and of the reasons of her subsequent conduct, are absolutely true. That may be SOj and his client's appearance on the stand before me was that of a bright, intelligent, candid woman,-an appearance that impressed me strongly in her favor; but the record shows contradictory testimony of other witnesses presented before Judge RODGERS, and they were not personally before me. Perhaps the judge believed their story, rather than hers. I do not know. Certain it is that, after she received, opened, and examined the goods, a long time elapsed before any proceedings, if, indeed, any complaints were made. I do not mean to say that this inaction on her part would deprive her of her rights, in case she had been defrauded. I simply notice the fact that, by common rule of decision, such inaction is very significant. As I said, I do not intend to express any opinion on the merits of that
CF)NTRAL TRUST CO. "'; EAST fi:NNESSEE, V. &: G. R. CO.
case, for I think be improper to assume, in any respect, theattitude of a court of error; I have simply mentioned these matters to show, that there were questions to be decided, and that only intensity of, personal feeling could lead to the assertion that the judgment was so grossly and manifestly erroneous and unjust as to be evidence of corrup.tion. I haveno hesitation in saying that there is nothing in the case before me that justifies a declaration that this judgment was a corrupt one. I think this ends the case; Counsel, it is true, insists that, although this judgment might be conclusive in favor of,JosHn, it would not be conclusive in favor of Lamb, who actually made the representations; and that in this proceeding complainants are entitled to a finding as against Lamb,and an adjudication that the amount thus found isa lien upon the land, even in the hands of the cattle company. This is a mistake. Joslin stands by the judgment of the superior cOurt acquitted of wrong, and the title he held was free from any burden· of lien in favor ofthesl' complainants. Holding such title,heconveyed it to the cattle company; andwhileitmaybetrue---:-and as to that I express no opinion-that that judgmentind"avor of Joslin is no protection to Lamb, still any relief ag8.insthim must be sought by an action at law,and not by this table l>:roceeding. ' .A deCree will be entered dismissing the bill.
Co. arid others.
TENNEssEE, V. & G. R.
In re Intervening Petition of
«(Jirouit Oourl, N.D. Georgia. December 81.18861
In a .suit to foreclose a mortgage. upon a railway extending through several states; "'hErre original bill is filed in Tennessee, and ancillary bills in Georgia, AlabariJ:a;and Mississippi, upon application to the ancillary court, in Georgia, .by a judgment creditor of the JP,ortgagor, to have an order against.the receiyer topay his' claim out of the earnings of the mortgagor that were on hand 'at the date of the appointment of the receiver,held, the petition withOut:pl'ejudice, that the c.ourt in Tennessee. in which the orIginal bill was filed, and upon whose ordets thll receiver had paid. out all of the funds to his hands, is the proper tribunal to which il. jUdgment creditor should make application for relief. .
BAllm CREDITOR-PERSONAL INJUlUEs:-PRIORITY CORPUS OF ESTATE. ' ,
A creditor having a judgment for personal injuries against the mortgagor, growing out of torts committed by it before the receivership, iS8 general cr,editor,and his judgment is not -entitled to priority of Slltisfaction out of the earnings of the receivership, and alortiori not out of the corpUII of the estate.
In Equity. R. B. Trippe nnd MtCarny&.JValw, for petitioner. Bacon & Rutherford, P. Q. Mynatt, and W. M. Baxter J conttrG.