Altergott v. Yeager, 74--049

• Decision Date: 09 October 1975
• Docket Number: No. 74--049,74--049
• Citation: 37 Colo.App. 23,543 P.2d 1293
• Parties: Ruby Kisner ALTERGOTT, Plaintiff-Appellant, v. Harold YEAGER et al., Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 1293

543 P.2d 1293

37 Colo.App. 23

Ruby Kisner ALTERGOTT, Plaintiff-Appellant, v. Harold YEAGER et al., Defendants-Appellees.

No. 74--049.

Colorado Court of Appeals, Div. I.

Oct. 9, 1975.

Rehearing Denied Nov. 6, 1975.

Certiorari Denied Jan. 12, 1976.

Robert W. Caddes, Denver, for plaintiff-appellant.

Hammond & Chilson, John H. Chilson, Loveland, for defendant-appellee Harold Yeager.

Harden & Napheys, P.C., Charles S. Bloom, Fort Collins, for defendants-appellees Albert Yeager and Victor Yeager.

BERMAN, Judge.

This is an appeal from a judgment granting defendants' motion for summary judgment and dismissing the complaint. We reverse.

Ruby Kisner Altergott filed her amended complaint against the defendants, Harold Yeager and his brothers Albert and Victor, claiming damages as a result of fraudulent representations made to her by the defendants. Albert and Victor were sued as co-executors of the estate of Herman Yeager, deceased; additionally, Albert and Harold were sued individually.

According to the amended complaint, the course of events leading to this action began when Harold was adjudged to be the father of a child born to plaintiff on September 27, 1943. Although the paternity action was instituted December 31, 1943, a reversal of the jury's verdict, See Yeager v. People, 116 Colo. 379, 181 P.2d 442, mandated a retrial leading to another jury verdict and judgment for plaintiff being entered on January 6, 1948. That judgment awarded the plaintiff damages of $47.50 per month and directed back payments due from the date of the birth of the child to be paid in a lump sum at once. The monthly payment of $47.50 was to be paid for a period not to exceed 18 years from the birth of the child.

On the day after the birth of the child, Harold, by quitclaim deeds, conveyed all his right, title and interest in two parcels of land, which he then owned in the County of Boulder, to his brother Albert and his now deceased brother Herman. These deeds were properly recorded. On December 10, 1946, Albert and Herman, in response to garnishee summons and interrogatories served upon them, filed their answers under oath asserting 'that they did not have in their possession or under their control any property of Harold Yeager or in which he is interested.' They further claimed in their answers 'that they did not know of any property, real or personal, in which Harold Yeager had an interest, and the title to such property was not recorded in his name.' Plaintiff, in her complaint, states that 'such statements were false, were known to be false when made, and were made with an intent that (plaintiff) rely upon them to her damage.'

After the second jury verdict was returned, plaintiff in August 1948 filed a complaint against Harold, Albert, and Herman, claiming that the real property previously conveyed by Harold to Herman and Albert was conveyed for the purpose of avoiding legal liability to support Harold's son. To this complaint, Harold filed a verified answer stating that 'he had no property subject to levy under execution, and that he had no right, title or interest in or to the real estate described in the complaint and disclaimed any interest therein.' This the plaintiff claims was false, was known by Harold to be false, and was made for the purpose that she rely upon it. The amended complaint in the instant case also claims that on November 10, 1948, Herman and Albert filed their verified answer to garnishee summons, claiming that 'they did not have in their possession or under their control any property of Harold . . . or any property in which (he) was interested,' and that these statements were knowingly false and made for the purpose of defrauding plaintiff.

As of December 8, 1948, Harold had paid nothing for the support and maintenance of the child born to plaintiff. On that date, Harold offered to settle and satisfy the judgment for the sum of $5,000 which was to be a 'complete settlement of all obligations for support, maintenance and education of the child and the plaintiff personally.' Plaintiff, relying 'upon the previously made false statements of (Albert, Herman, and Harold), entered into a stipulation and agreement of settlement,' which was approved by the court on December 8, 1948, and then received the amount specified in the agreement. As part of the settlement the court dismissed the money judgment rendered in the paternity suit and also dismissed with prejudice the suit instituted by plaintiff in August 1948.

Herman died on August 4, 1965, and Harold filed a claim against Herman's estate asserting that Harold was the equitable owner, pursuant to an oral trust agreement with Herman, of 28.98% Of all property, with certain exceptions not relevant here, held in Herman's name. Following a hearing, the court with jurisdiction over the estate determined on April 21, 1971, that in 1946 an oral agreement was made between Herman, Albert, and Harold whereby upon completion of a program of work to which they all agreed, Harold's respective interest in the overall joint farming operations would be 20%; that legal title to the interest of Harold Yeager was at all times held in the name of Herman Yeager; and that Harold's 20% Interest in the entire farming operation of the brothers constituted 28.98% Of interest in the property held in the name of Herman Yeager with certain exceptions not relevant here.

During the course of the hearings on the claim, plaintiff was subpoenaed in March 1972 to testify as a witness, and it was at that time she allegedly first learned of the oral agreement between the defendants and Harold regarding Harold's ownership interest in real property. It was as a result of that knowledge that she filed her complaint in this action on June 2, 1972.

Defendants in their answer admitted most of the allegations of the complaint, but denied that either the sworn answers to the interrogatories or the verified answer filed by Harold to the action instituted against Harold, Albert, and Herman in August 1948 were false. Additionally, they set up a number of affirmative defenses, and thereafter, the defendants moved for summary judgment based upon the ground that the present action constituted a collateral attack on the judgment of dismissal in the paternity action and the dismissal of the 1948 case.

In granting the motion for summary judgment, the trial court assumed all of the facts alleged in plaintiff's complaint to be true, and found as a fact that the fraud of which plaintiff is now complaining was intrinsic to the action instituted by her in August 1948 and was clearly presented to the court in that action. The trial court then concluded as a matter of law that plaintiff's present complaint constituted a collateral attack on the dismissal of the previous complaint. This appeal followed.

The dispositive issue on review is whether the trial court erred in granting the motion for summary judgment on the ground that the plaintiff could not maintain the present suit because it was a collateral attack on a previously rendered judgment.

A collateral attack on a judgment is defined as:

"(A)n attempt to avoid, defeat or evade (the judgment), or deny its force and effect, in some incidental proceeding not provided by law . . .." Brennan v. Grover, 158 Colo. 66, 404 P.2d 544.

The...