Boyd v. Adjustment Bureau, Inc., 19594
| Decision Date | 23 October 1961 |
| Docket Number | No. 19594,19594 |
| Citation | 148 Colo. 233,365 P.2d 813 |
| Parties | Luther R. BOYD, a/k/a L. R. Boyd, Plaintiff in Error, v. ADJUSTMENT BUREAU, INC., Defendant in Error. |
| Court | Colorado Supreme Court |
Kettelkamp, McGrath & Vento, Pueblo, for plaintiff in error.
John R. Wall, Pueblo, for defendant in error.
Adjustment Bureau, Inc., as an assignee and hereafter referred to as plaintiff, brought the present action on a promissory note against Luther R. Boyd, and others. Upon trial, the jury returned a verdict in favor of Boyd and an appropriate judgment of dismissal of the action as to the defendant Boyd was duly entered.
Within 10 days after the reception of this verdict, plaintiff filed a motion for judgment notwithstanding the verdict of the jury, and as grounds therefor alleged, among other things, that the trial court erred in denying its motion for a directed verdict theretofore interposed at the close of all the evidence. In this regard the record discloses that plaintiff did in fact make a motion for a directed verdict at the conclusion of the presentation of evidence. Such is required by Rule 50(b) R.C.P.Colo. and is in fact a condition precedent to any subsequent consideration of a motion for a judgment notwithstanding the verdict of a jury. See Grange Mutual Fire Ins. Co. v. Golden Gas. Co., Inc., 133 Colo. 537, 298 P.2d 950.
Counsel for Boyd received a copy of this motion, together with notice that the motion would be heard on June 21, 1960 at 10 o'clock a. m. Hearing on this motion was had on the date stated, at which time the motion was granted and the trial court entered judgment for plaintiff against Luther Boyd in the amount of $1,274.83 and costs.
Counsel for Boyd did not appear at the hearing on plaintiff's motion for judgment notwithstanding the jury's verdict. Thereafter on June 27, 1960 counsel for Boyd filed a motion seeking to have the trial court 'reconsider' its action of June 21, 1960. In this 'Motion to Reconsider' Boyd did not challenge the correctness of the action of the trial court in granting the motion for a judgment notwithstanding the verdict. Rather, counsel for Boyd sought reconsideration on the ground that though he had received a copy of plaintiff's motion for judgment notwithstanding the verdict and notice that it would be heard on June 21, 1960 at 10 o'clock a. m., he nevertheless did not appear until some time after the appointed hour, when he was informed that the motion had already been heard in his absence. He in effect urges that as a matter of fairness he should be heard before the solemn verdict of a jury be thusly set aside, especially in view of the length of time devoted to the trial of the case. This motion to reconsider was argued and denied, the trial court stating that it was still of the firm belief that in granting plaintiff's motion it acted correctly, and the re-opening of the matter would therefore be a useless gesture.
Subsequent to the entry of the judgment for plaintiff against Boyd no motion for a new trial was filed in his behalf, nor did the trial court enter any order dispensing with the necessity for the same. Nevertheless, by writ of error Boyd now seeks reversal of...
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...to comply with Rule 59. As additional authority therefor he cites Kopff v. Judd, 134 Colo. 330, 304 P.2d 623, and Boyd v. Adjustment Bureau, 148 Colo. 233, 365 P.2d 813. In Kopff v. Judd, supra, it was 'In order that the matter may be finally set at rest, we hold that under the Rules of Civ......
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...is sought of a pure question of law as well as of questions of fact. Kopff v. Judd, 134 Colo. 330, 304 P.2d 623; Boyd v. Adjustment Bureau, Inc., 148 Colo. ----, 365 P.2d 813. The record before us discloses that no motion for new trial was ever filed nor was an order dispensing therewith en......