Baumgartner v. Schey

• Decision Date: 20 June 1960
• Docket Number: No. 18708,18708
• Citation: 143 Colo. 373,353 P.2d 375
• Parties: Charley BAUMGARTNER, Wanda L. Baumgartner and James H. Dunn, Plaintiffs in Error, v. Clara M. SCHEY, Defendant in Error.
• Court: Colorado Supreme Court

Page 375

353 P.2d 375

143 Colo. 373

Charley BAUMGARTNER, Wanda L. Baumgartner and James H. Dunn Plaintiffs in Error, v. Clara M. SCHEY, Defendant in Error.

No. 18708.

Supreme Court of Colorado, In Department.

June 20, 1960.

Rehearing Denied July 11, 1960.

Houtchens & Houtchens, John J. Dooley, Greeley, for plaintiffs in error.

M. E. H. Smith, Greeley, for defendant in error.

PER CURIAM.

The parties are here in the reverse order of their appearance in the trial court, and will be referred to as they there appeared, or by name.

Plaintiff's complaint filed December 23, 1957, denominated a 'Complaint (Declaratory Judgment)' for a first claim alleges that the plaintiff, Clara M. Schey, is the owner of certain land in Weld County; that on November 1, 1954, defendant Wanda L. Baumgartner entered into a 1-year lease with one Edward J. Schey for these premises for a term from November 1, 1954, to February 1, 1956, and the defendants, Baumgartners, farmed said property; that the property was farmed in 1957 by all or some of the defendants, the arrangement between defendant Dunn and defendants Baumgartners being unknown to the plaintiff; that plaintiff had made no agreement to lease to the defendants or any of them for the farm year of 1958, but that defendants or some one or more of them were claiming a verbal lease for that year; that plaintiff had sold the property with possession to be given by February 1, 1958; that there is a question of the existence of a contract between the plaintiff and defendants or any one or more of them for the farm year 1958, the same being a proper question for determination of the parties' rights and status under declaratory judgment proceedings; that to wait until February 1, 1958, would subject the plaintiff to damages and delay in the sale of the farm.

For a second claim plaintiff alleged that there was due and owing to her by the defendants, money for straw and water; that the plaintiff owed the defendants for plowing and irrigation in an unknown amount; and that there should be a complete accounting between the parties. The plaintiff prayed that the court determine that there was no contract or farm lease for the year 1958; that the plaintiff be given possession of the premises; and for an accounting.

The answer filed by the defendants, Charley Baumgartner and Wanda L. Baumgartner, generally admits the allegations of the complaint but alleges that defendant James H. Dunn has a lease for the property. They disclaim any interest in the property described, and ask that plaintiff's complaint be dismissed.

Defendant Dunn filed a separate answer admitting the lease between Wanda L. Baumgartner and Edward J. Schey to the lands owned by the plaintiff; admits he had farmed the property; denies that plaintiff had made no agreement to lease for the 1958 farming season and claims that he has a lease for the year 1958 to the property described; alleges no knowledge of a sale by the plaintiff to other parties; denies there is a question as to the existence of a contract between the plaintiff and defendants or any of them for the farm year of 1958; denies the parties' rights and status may be determined under a declaratory judgment. He further denies any money is due plaintiff, or from plaintiff to defendants; or that an accounting should be had. He affirmatively alleges that during the period from 1956 through 1957 Edward J. Schey was the agent, servant, employee, or attorney of the plaintiff, and that he was and is the actual or equitable owner of the lands described; that Edward J. Schey leased the lands to the defendant, Wanda Baumgartner, for the term ending February 1, 1956; that Wanda L. Baumgartner sublet the lands to him (Dunn) for the farming season 1956; that he farmed the lands as tenant of the plaintiff during the year 1957; that he is either a tenant from year to year or a holdover tenant under the lease dated November 1, 1957; and in the fall of 1957 the plaintiff by her agent, servant, employee, or attorney, leased the lands to this defendant; he has expended time and incurred expenses in the preparation of fields for the crop of 1958; and prays that the court dismiss the plaintiff's complaint.

Trial proceeded to a jury, although the court reserved its judgment on the question of whether the defendants were entitled to a jury trial in view of the claim made for an accounting, and the action being one for declaratory judgment.

Upon the conclusion of the evidence the plaintiff moved for a directed verdict upon which the court reserved ruling, and instructed the jury, which returned a verdict for defendants. Upon receipt of the verdict the clerk was ordered not to enter judgment thereon until further order of the court. The matter of right to trial by jury was then argued and the court concluded as follows:

'It is the conclusion of the Court, and it is the opinion of the Court, that the declaratory judgment act in the state of Colorado is to be liberally construed. The plaintiff in this case asks for declaratory relief, and from the complaint and from the evidence in this case declaratory judgment relief is proper.

'The Court therefore rules that with respect to trial by jury in this case, the parties were not entitled to a trial by jury, since there was no statutory provision for trial by jury. So at most the verdict of the jury will be considered as advisory. The motion of the plaintiff for a directed verdict, although good, becomes academic in view of the fact that the Court finds that there was no right to trial by jury.'

The verdict was set aside and the court made extensive oral findings and announced judgment for the plaintiff. The court found that neither or any of the defendants had a lease for the property described in the complaint beyond and after January 31, 1958, and that plaintiff is indebted to the defendants in the sum of $250 and costs taxed against the defendants.

The first question to be determined is whether a jury trial may be had in an action brought under the declaratory-judgment statute which created a right of action unknown before its adoption.

C.R.S. '53, 77-11-9 reads:

'When a proceeding under this article involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of facts are tried and determined in other civil actions in the court in which the proceeding is pending.'

Rule 57(i), R.C.P.Colo., contains the same language.

The general rule of law applicable to declaratory-judgment actions is stated in 13 A.L.R.2d 790:

'Under this and similar provisions in the few states which have not adopted the Uniform Act, the courts have generally applied a historical test to determine whether a right to jury trial exists in a declaratory judgment action. Thus, if any of the parties would have had a constitutional right to jury trial on any issue involved prior to the Declaratory Judgments Act, such right is retained.'

Though there is some divergence of view in states having adopted the Declaratory Judgments Act, C.R.S. '53, 77-11-1 et seq., the majority rule is that whether a party is entitled to have disputed issues of fact decided by...