Sowers v. Kenworthy

Mr. Chief Justice Teller delivered the opinion of the court. Plaintiff in error was plaintiff in a suit to quiet title to some mining claims. The complaint alleged title and possession. The defendants denied plaintiff’s title and possesssion, and alleged title through a judgment of foreclosure, which judgment has been affirmed in this court, Sowers v. Johnson, 59 Colo. 258, 149 Pac. 248. Plaintiff’s replication charged that the foreclosure was ordered in a suit in which the court was without jurisdiction of the subject matter. The ground of this charge was that the foreclosure wats not within the issues pleaded. It was alleged also that an accounting as to ores extracted from the property was also had without the matter having been pleaded. The original suit in which the judgment in [429] question was entered was brought by the plaintiff and her husband to have a series of transactions, beginning with a loan secured by said property adjudged to be an equitable mortgage. It was so held and the foreclosure followed. It is now contended that the court had no jurisdiction to make an order retaining jurisdiction of the case for the purpose of foreclosing the equitable mortgage. The purpose of the original suit is evident. There had been a number of agreements as to redemption, with some collateral agreements, and apparently the plaintiffs desired to have questions which might arise determined by a foreclosure, so that a subsequent redemption would be effective. The prayer of the complaint was that the agreements might be held to constitute an equitable mortgage, and that such mortgage might be foreclosed. That the court granted the relief demanded cannot be a ground of complaint on the part of plaintiff. As to the others, it is sufficient to say that the plaintiffs demanded an accounting, and subsequently stipulated that an accounting should be had. They also stipulated for the entering of the decree in question. That the court had jurisdiction of the subject matter of the foreclosure and accounting cannot be questioned. The parties weré before the court, and at their instance the court proceeded to adjudicate, as it ought, all the matters involved. Plaintiffs cannot, by varying the form of action, escape the effect of a judgment regularly entered; and especially where such judgment was with the consent and, in part, upon the application of the plaintiff. Finding no error in the record, the judgment is affirmed. Decision en banc. Mr. Justice Allen and Mr. Justice Whitford not participating.