Allison v. Heller, 17565

• Decision Date: 24 October 1955
• Docket Number: No. 17565,17565
• Parties: Gordon Kelth ALLISON, Plaintiff in Error, v. Lawrence G. HELLER, Defendant in Error.
• Court: Colorado Supreme Court

Page 160

289 P.2d 160

132 Colo. 415

Gordon Kelth ALLISON, Plaintiff in Error, v. Lawrence G. HELLER, Defendant in Error.

No. 17565.

Supreme Court of Colorado, En Banc.

Oct. 24, 1955.

Calkins & Rodden, Denver, for plaintiff in error.

Bennett & Heinicke, Colorado Springs, for defendant in error.

KNAUSS, Justice.

In the trial court defendant in error Heller was plaintiff, and plaintiff in error Allison was defendant. We will refer to the parties as they there appeared, or by name.

Plaintiff's action to recover damages from defendant arose out of an automobile collision at the intersection of Third and Elm Streets in the Broadmoor District of El Paso County, Colorado, on January 10, 1954. Plaintiff's car was a family car and on the occasion was driven by his wife. Plaintiff's car was traveling north on Third Street and defendant's automobile was proceeding west on Elm Street. Defendant denied any negligence on his part as alleged in plaintiff's complaint, and filed a counterclaim for damage to his automobile, sustained in said accident. Trial was to the court and findings of the trial judge were in favor of plaintiff both on his complaint and on defendant's counterclaim. From the judgment entered in favor of plaintiff, defendant brings the cause here on writ of error.

Rule 111(f), R.C.P.Colo., provides inter alia that plaintiff in error in his summary of the argument 'shall state clearly and briefly the grounds upon which he relies in seeking a reversal or modification of the judgment * * *.' The summary of argument specified in our present Rules supplants what was formerly deniminated Assignments of Error, and the later Specification of Points. In the instant case the 'Summary of the Argument' comprises almost three full typewritten pages, which in essence are arguments. Then, under the heading 'Argument' we find three subdivisions: '1. The verdict is contrary to law. 2. The verdict is contrary to the evidence. 3. The verdict is contrary to the law and the evidence. 4. There is no substantial evidence to support the findings of this court.'

The summary of the argument in this case does not comply with the rules above mentioned. The first three subdivisions under the heading 'Argument' are meaningless under our Rules. They do not direct our attention to any alleged error and such mother hubbard generalities are not permitted under the provisions of our Rules. Where a proper summary of the argument is lacking, we may decline to notice alleged errors presented in the argument.

Items 1, 2 and 3 enumerated above are so general that they cover any possible question involved in the record. In Debevtz v. New Brantner Extension Ditch Company, 78 Colo. 396, 241 P. 1111, 1112, Mr. Justice Burke said: 'Rule 32 of this court requires that 'each error shall be separately alleged and particularly specified.' These three are hence no assignments and will not be noticed.' See, also, Williams v. Williams, 85 Colo. 551, 277 P. 468; Daiss v. Henes, 85 Colo. 397, 277 P. 5; Goodrich v. Union Oil Co. of California, 85 Colo. 218, 274 P. 935.

Our latest pronouncement on this matter appears in Cline v. McDowell, Colo., 284 P.2d 1056, 1058, where Mr. Justice Clark speaking for the Court said:

'Referring now to the second ground upon which protestants rely for reversal, wherein they assert that the findings and orders of the trial court 'are contrary to the evidence and contrary to the law,' we first call attention to the fact that such is not sufficient to authorize its consideration upon review. Platte Valley Elevators Co. v. Gebauer, 127 Colo. 356, 256 P.2d 903, and cases therein cited. In Rule 111(f), R.C.P.Colo., prescribing what each party shall set forth in his summary of argument, it is provided that, 'He will be limited...