People ex rel. Sullivan v. District Court

Chief Justice Campbell

delivered the opinion of the court.

It does not clearly appear from the petition just what particular order of the district court is sought to be reviewed, but since the writ can be used to review only the final determination of an inferior tribunal (Schwarz v. County Court, 14 Colo. 44 ), we take it to be the order of the district court entered March 6, 1896, dismissing the action, as that is the only final order to which our attention has been called; neither the ruling on the motion to vacate that order, nor that denying the referee’s application to file his report, being a final judgment.

Under the constitution, whence is derived our jurisdiction to issue the writ of certiorari, the right thereto is not absolute, but rests in the sound discretion of the court. Under the facts of this case it does not become necessary to determine whether the district court had power to make the rule under which the cause was dismissed, or had jurisdiction to enter the order of dismissal while the action was, as it is said, pending before a referee and without an order having been first entered by the court setting aside the reference. For it is clear that petitioner, by his negligent delay, is not entitled to the writ, even upon his assumption that the pow *221 er of dismissal, in the circumstances stated, was beyond the jurisdiction of the district court. The fact that respondent has not pleaded laches, however the omission may affect his right to assert it, is not conclusive on the court. The court, sua sponte, may raise the point, and in so flagrant a case as this record discloses, we cannot overlook it.

Prom the foregoing statement it will be observed that the judgment dismissing the action was rendered March 6, 1896. In his application for this writ plaintiff alleges that he did not learn of that judgment for more than six months after it was entered. This declaration is pregnant with the admission that he knew of it directly after the expiration of six months. But if this were not so, from the return it appears, by petitioner’s affidavit Sled in support of his application made in the district court to reinstate the action, that he was informed of it on or about the 2oth day of November 1898. He therefore was apprised of it within two years and nine months after the order was entered. By complying with our practice act petitioner might have gone to the court of appeals either by appeal from, or writ of error to, the judgment of dismissal, and he had three years for reviewing the judgment by writ of error. He has not offered any sufficient excuse for the unreasonable delay in filing this application, or for his non-action during the period of more than three months left for him to sue out a writ of error after he discovered that the judgment of dismissal had been rendered. It was solely his own fault that he did not get the benefit of the several plain, speedy and adequate remedies open to hirh. Under the common law practice a party may not disregard plain statutoay remedies and then receive, as a reward for his laches, extraordinary relief by certiorari. Numerous cases might be cited in support of this conclusion. They will be found collected in Harris on Certiorari, at seetioas 30, 55, 67, 80, 87, 132,142, 291, 383, 591, 670, 736, 785, 788, *222 799.

The rule to show cause should be quashed and the petition dismissed at the costs of petioner, and it is so ordered.

Petition Dismissed.