Film Enterprises, Inc. v. Selected Pictures, Inc., 18121

• Decision Date: 21 January 1957
• Docket Number: No. 18121,18121
• Parties: FILM ENTERPRISES, Inc., Plaintiff in Error, v. SELECTED PICTURES, Inc., John M. Wolfberg, Ruth S. Wolfberg, Executrix of the Estate of Harris P. Wolfberg, Defendants in Error.
• Court: Colorado Supreme Court

Page 252

306 P.2d 252

134 Colo. 451

FILM ENTERPRISES, Inc., Plaintiff in Error, v. SELECTED PICTURES, Inc., John M. Wolfberg, Ruth S. Wolfberg Executrix of the Estate of Harris P. Wolfberg Defendants in Error.

No. 18121.

Supreme Court of Colorado, In Department.

Jan. 21, 1957.

Rehearing Denied Feb. 11, 1957.

Hodges, Silverstein, Hodges & Harrington and James B. Reed, Denver, for plaintiff in error.

Edward Miller, Denver, for defendant in error Ruth S. Wolfberg.

SUTTON, Justice.

Plaintiff in error, who was plaintiff below, brings error to review a judgment of the district court dismissing its complaint as to Harris P. Wolfberg, and in denying a motion to substitute as a party defendant the executrix of the deceased defendant Harris P. Wolfberg. Defendant in error, Ruth S. Wolfberg, as Executrix of the estate of Harris P. Wolfberg, deceased, appearing specially in this Court has moved to dismiss the pending writ of error. As grounds therefore she alleges: (1) That this defendant in error was not substituted for Harris P. Wolfberg within two years after the death of Harris P. Wolfberg, or at any time; and (2) that the writ of error was issued after three months from the entry of the judgment complained of insofar as this defendant in error is concerned. Plaintiff in Error has answered and both parties have filed briefs.

From the record it appears that on February 25, 1954, after the death of Harris P. Wolfberg, plaintiff filed its motion to substitute his executrix as a defendant in the trial court. Following a hearing on April 14, 1954, that motion was denied. No reason was given by the trial court as the basis of its ruling, and no order dismissing the case as to Harris P. Wolfberg was entered. We note that both the motion for substitution under Rule 25, Colo. Rules of Civil Procedure, and the court's order denying the same, fail to disclose either the date of death or the date of admission to probate of the last will and testament of Harris P. Wolfberg; however, in plaintiff in error's answer in this court it is stated that he died in January, 1954. With the motion below disposed of, the matter proceeded to trial without a jury, resulting in a judgment of dismissal which was entered March 19, 1956. Plaintiff's motion for a new trial alleged among other things that it was error to deny its motion for substitution of the executrix for the deceased defendant Wolfberg. Motions for new trial and for judgment were both denied by the trial court on July 31, 1956, and plaintiff in error seeks relief by writ of error.

The sole question now before us is:

Can a substitution of this defendant in error now be made or ordered?

This question is answered in the negative.

Rule 25, Colorado R.C.P., with respect to substitution of parties provides:

'(a) Death.

'(1) If a party dies and the claim is not extinguished or barred, the court within two years after the death may order substitution of the proper parties. If substitution is not so made, the action shall be dismissed as to the deceased party. * * *' (Emphasis supplied.)

'(2) * * * (e) Substitution at Any Stage. Substitution of parties, under the provisions of this rule, may be made by the trial court, either before or after judgment, and by the supreme court in proceedings on writ of error.'

Here the record and briefs show that the executrix has not been substituted and that the death occurred in January, 1954. It is now January, 1957, three years later. Our rules of civil procedure provide that, regardless of the...