Denver Land Co. v. Moffat Tunnel Improvement Dist.

• Decision Date: 20 January 1930
• Docket Number: 12250.
• Citation: 284 P. 339,87 Colo. 1
• Parties: DENVER LAND CO. v. MOFFAT TUNNEL IMP. DIST. et al.
• Court: Colorado Supreme Court

284 P. 339

87 Colo. 1

DENVER LAND CO. v. MOFFAT TUNNEL IMP. DIST. et al.

No. 12250.

Supreme Court of Colorado, En Banc.

January 20, 1930

Error to District Court, City and County of Denver; Robert G Smith, Judge.

Suit by the Denver Land Company against the Moffat Tunnel Improvement District and others. The action was dismissed, and plaintiff brings error. Reversed, with directions.

Grant, Ellis, Shafroth & Toll, W. W. Grant, Jr., and Erl H. Ellis, all of Denver, for plaintiff in error.

Norton Montgomery and Erskine R. Myer, both of Denver (Horace N Hawkins, of Denver, of counsel), for defendants in error.

Paul W Lee, George H. Shaw, Donald C. McCreery, and Pershing, Nye Tallmadge & Bosworth, all of Denver, amici curiae.

ALTER J.

The Denver Land Company, a corporation, on behalf of itself and all others similarly situated, brought this action in the district court to restrain and enjoin the Moffat tunnel improvement district, a body corporate, and the commissioners of the Moffat tunnel commission from levying certain special assessments and certifying the same to the county assessors of the various counties within which there was situate real estate subject to assessment for the Moffat tunnel improvement district. The Denver Land Company also sought, under the provisions of chapter 98, p. 268, Session Laws of Colorado 1923, a declaration as to the validity of certain levies made by the Moffat tunnel commission in the years 1925, 1926, and 1927; also as to the validity of a levy made in 1928 to provide the sum of $516,200, a part of which was to be used to pay interest upon the Moffat tunnel supplemental bond issues; also as to the validity of Moffat tunnel supplemental bonds in the aggregate amount of $8,750,000, issued and sold by the Moffat tunnel commission in three separate and distinct supplemental bond issues.

The plaintiff alleged that the supplemental bond issues were illegal, unlawful, and issued without authority; that the levies of which complaint is made were also illegal, unlawful, and issued without authority. The defendant joined, in its answer, with the plaintiff, in asking the trial court of determine the validity of all its proceedings with reference to supplemental bond issues, and the levies made in connection therewith.

No bondholder was made a party defendant to this action, and none appeared and asked to be made a party thereto. There is no attempt by the plaintiff to explain or excuse the failure to make all, some, or one of the bondholders parties to this action. From a judgment of dismissal, the plaintiff prosecutes this writ.

The parties hereto, by stipulation of their respective counsel, amending the proceedings had in the case, agree that, at the conclusion of the plaintiff's opening statement, the Honorable Robert G. Smith, the judge before whom the trial occurred, inquired: * * * 'Are not the bondholders necessary parties? The bondholders have not been made parties and therefore, under the authority of recent cases, would it not appear that this Court is without jurisdiction to proceed unless the bondholders are made parties?'

Counsel for the plaintiff thereupon stated that in his opinion the court had jurisdiction to proceed, and requested the court to make final and complete determination of all matters involved in the litigation, and the court then inquired: 'Is this Court to understand therefore that the parties of record request the case to proceed upon the assumption that this Court has jurisdiction, notwithstanding the fact that the bondholders have not been made parties to the action?'

After counsel for each of the parties, and also amici curiae, had expressed the opinion that the court had power and jurisdiction and should proceed to a final and complete determination of the whole matter involved in the litigation, the court said: 'It has been stated that the regular Judge of this Court had considered this case fully at issue, and the case has been specially set for me to hear at this time. You gentlemen have certainly given this matter much more consideration than I have, and inasmuch as Mr. Ellis and Mr. Grant for the plaintiff, Mr. Montgomery and Mr. Myer, for the defendants, Mr. Herrington for the intervenor, and Mr. Pershing as friend of the Court, all insist on proceeding at this time on the record in its present state, and I having been called in specially to hear it at this time on a special setting, and there apparently being, from the statements by counsel, questions which may be determined independently of any question as to further parties, if you all desire it, we will proceed.'

At this point in the proceedings, each attorney again expressed his desire that the case proceed; the attorneys for the defendant using this language: * * * 'We do not desire to contest the jurisdiction of this Court in this case, and are very anxious that the hearing proceed at this time.'

The trial court assumed jurisdiction and determined the validity of the Moffat tunnel supplemental bonds in the amount of...