Film Enterprises, Inc. v. Wolfberg, 18395

• Decision Date: 03 February 1958
• Docket Number: No. 18395,18395
• Citation: 137 Colo. 84,321 P.2d 218
• Parties: FILM ENTERPRISES, Inc., a Colorado Corporation, Claimant, Plaintiff in Error, v. Ruth S. WOLFBERG, Excutrix of the Estate of Harris P. Wolfberg, deceased, Defendant in Error.
• Court: Colorado Supreme Court

Page 218

321 P.2d 218

137 Colo. 84

FILM ENTERPRISES, Inc., a Colorado Corporation, Claimant Plaintiff in Error, v. Ruth S. WOLFBERG, Excutrix of the Estate of Harris P Wolfberg, deceased, Defendant in Error.

No. 18395.

Supreme Court of Colorado, En Banc.

Feb. 3, 1958.

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

Edward Miller, Denver, for defendant in error.

SUTTON, Justice.

Plaintiff in error, Film Enterprises, Inc., was claimant below and will be referred to as 'Film'. Selected Pictures, Inc., a defendant in error in case No. 18121 in this court, will be referred to as 'Selected'. Ruth S. Wolfberg, executrix of the estate of Harris P. Wolfberg, deceased, defendant in error here, will be referred to as 'executrix'. The Harris P. Wolfberg Estate will be referred to as 'estate'.

Executrix has filed her motion to dismiss the writ of error in this case asserting that an order of the county court complained of dated May 22, 1957, is not a final judgment.

As hereafter appears, a complicated fact situation is disclosed by the record in both this case and its related case No. 18121 now pending in this court.

Prior to the death of Harris P. Wolfberg he and the other defendants in error in No. 18121 were named defendants in a district court suit, to which we will refer as the 'District Court case' and in which Film as plaintiff asserted that Selected had failed to pay an amount due it, its claim being based upon an alleged transfer of asserts by Selected to John M. Wolfberg and Harris P. Wolfberg allegedly in fraud of creditors and by the declaration of improper dividends by John M. and Harris P. Wolfberg as directors of Selected, the end result being that Selected was allegedly left without assets to pay its creditors.

In the District Court case Film made timely application for an order to substitute executrix for Harris P. Wolfberg following the latter's death. This motion was denied by the trial court and writ of error sued out thereon by Film. This court held in Film Enterprises, Inc., v. Selected, 134 Colo. 451, 306 P.2d 252, that under Rule 25 (a), Colo.R.C.P., the substitution not having been effected within two years as required by the rule that upon writ of error the presented question of substitution was moot.

The district court, following its denial of the motion for substitution, proceeded to trial which resulted in a dismissal of Film's action against Selected and the other defendant John M. Wolfberg. That case is now pending on writ of error in this court.

On February 25, 1954, within the statutory period, Film filed its claim against estate for the same claim being sued upon in the District Court case, and on April 20, 1954, filed a re-statement of its claim not mentioning the suit then pending in another court relating to said claim.

On March 8, 1957, executrix filed her motion for disallowance of the claims in the county court.

A written stipulation was entered into between counsel for Film and executrix setting forth the issues to be determined upon a hearing on the motion for disallowance in the county court. Following a hearing the county court on May 20, 1957, entered its written findings and orders which among other things stated that the question presented was one of jurisdiction as to whether the court had the right to proceed to determine the claim on its merits in view of the pending district court action, and concluded that in view of our decision in Koon v. Barmettler, 134 Colo. 221, 301 P.2d 713, there was no abdication of jurisdiction by the district court in the case there pending merely because it had denied the motion to substitute executrix, saying in that regard '* * * The Barmettler case seems to have settled the matter of jurisdiction, and applying the rules to this case, if ...