Gottesleben v. Luckenbach

• Decision Date: 09 April 1951
• Docket Number: No. 16465,16465
• Citation: Gottesleben v. Luckenbach, 231 P.2d 958, 123 Colo. 429 (Colo. 1951)
• Parties: GOTTESLEBEN v. LUCKENBACH.
• Court: Colorado Supreme Court

Page 958

231 P.2d 958

123 Colo. 429

GOTTESLEBEN v.LUCKENBACH.

No. 16465.

Supreme Court of Colorado, en Banc.

April 9, 1951.

Rehearing Denied May 21, 1951.

William Alan Bryans, George A. Luxford and Norman E. Cobb, all of Denver, for plaintiff in error.

Bancroft, Blood & Laws and Robert C. Tallmadge, all of Denver, for defendant in error.

STONE, Justice.

In the estate of Richard M. Gottesleben, deceased, plaintiff in error filed caveat objecting to the probate of a tendered will and alleging that she was the common-law wife of decedent.The issue so tendered was set for trial to the court and at the close of the evidence offered in behalf of caveatrix motion to dismiss was made by the executor on the ground that it was not sufficient to establish the marriage.The motion was sustained and appropriate judgment entered.

One ground of reversal here urged is the asserted error of the court in granting the motion for dismissal.Where trial is to the court, such motion is properly interposed as a challenge to the evidence, and it may be sustained if, in the opinion of the court, plaintiff's case has not been made out by a preponderance of the evidence.Niernberg v. Gavin, Colo., 224 P.2d 215.A careful review of the evidence here convinces us that we may not interfere with the action of the trial court in sustaining the motion.

Further error is predicated on refusal of the court to compel the attendance of witness Knoch.The record discloses that the deposition of said witness was available; that some time prior to the trial, opposing counsel informed counsel for caveatrix that said witness, who was a physician, had advised that his health would not permit his testifying and consented to introduction in evidence of all or any parts of his deposition, or to further deposition being taken.At the time of the trial corroboating certificate of another physician was admitted as to danger to the health of the witness, should he be called to testify.No showing was made as to what evidence counsel desired to obtain from said witness or that the desired evidence was material.Further, counsel made no application for attachment of said witness for contempt, no demand that he be required to attend, and no request for continuance of the case.'The issuance of an attachment is not, however, a necessary consequence of nonattendance in obedience to a subpoena, or a matter of absolute right, and the court is not bound to order the attachment of the witness ex...