Colorado Reports Volume 36 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1907 edition. Excerpt: ...day of November, the court overruled this motion and, on motion of appellee's counsel, rendered a judgment and decree in its favor. From this judgment this appeal is prosecuted. Mr. JUSTICE Gonnanu delivered the opinion of the court: 1. Counsel for appellant insist that the judgment of the county court disallowing the claim was res adjudicata, and barred the right to recover on the note in this action. The finding of the court, as set forth in the answer, is: "That the court doth further find as a matter of fact that more than six years have intervened between the date the cause of action " " arose and the time set for the hearing of said claim," and for this reason disallowed the claim. In order to constitute an estoppel by judgment, the same identical matter must have been in issue in the former suit, and the precise fact determined by the former judgmcnt.--Allen 1'. Tritch, 5 C010. 222; De Sollar 1." Hanscmnc, 158 U. S. 216. Thc.finding that the note in question was not provable against the estate of de Carli because barred by the statute of limitations at the time of the hearing in the county court, is in no sense a finding that it was barred on the 3d day of-April, 1900, the date this action was commenced. The judgment of the county court, therefore, constituted no bar to the enforcement of the note in this action, nor in any way precluded the district court from exercising its previously acquired jurisdiction in the foreclosure proceedings.. 2. It is unnecessary to consider the objection that the reply "does not deny the new matter set up in the answer," since no reply was necessary for the _ reason that the new matter, as we have seen, did not constitute a defense to the cause of...