Graham v. District Court In and For Jefferson County, 18329
| Decision Date | 31 March 1958 |
| Docket Number | No. 18329,18329 |
| Citation | 137 Colo. 233,323 P.2d 635 |
| Parties | Floyd GRAHAM, Jeanette Graham and E. L. Crabtree, Petitioners, v. The DISTRICT COURT IN AND FOR the COUNTY OF JEFFERSON, State of Colorado, Honorable Osmer E. Smith, Judge, Respondent. |
| Court | Colorado Supreme Court |
Clarence L. Bartholic, Denver, for petitioners.
Holley & Boatright, Wheatridge, for respondent.
Plaintiffs Davis sued for damages for alleged misrepresentation in the sale to them of certain realty. The suit was against the Grahams as sellers, and against Crabtree and Little as real estate brokers who negotiated the sale of the realty. Grahams cross-claimed against Little, as did Crabtree. In turn Little filed her cross-claim against Crabtree.
At the conclusion of plaintiffs' case each defendant orally moved for a dismissal on the ground of failure of proof. The following colloquy took place at the time the trial court ruled on these motions:
'Mr. Holley [attorney for plaintiffs]: Do we have any certain period of time in which to file a motion for rehearing on the matter?
'Mr. Duke [attorney for Little]: This does not amount to a dismissal of the cross claim.
After all the evidence was presented, the trial court 'sustained' motions to dismiss all cross-claims and granted plaintiffs' motion for a directed verdict against Little. Thereupon, the trial court submitted to the jury the sole question of the amount of damages sustained by the plaintiffs. The jury awarded actual and exemplary damages, and the trial court entered judgment on the verdict.
In due course Little filed her motion for a new trial, asserting, among other grounds, that the trial court committed error in granting the motions to dismiss of the Grahams and Crabtree. Plaintiffs did not file a motion for new trial. Without notice to the Grahams and Crabtree, Little's motion for new trial was heard and granted. Later the trial court clarified the order for a new trial by directing that it be 'effective as to each and all of the parties to this cause' and set the case down for a pretrial conference.
The Grahams and Crabtree are here seeking relief in the nature of prohibition. In their petition they seek an order from the court prohibiting the trial court from proceeding with the 'retrial of the case as to' the Grahams and Crabtree. Pursuant to the prayer of the petition a rule to show cause was issued. The Grahams and Crabtree take the position that the trial court was without jurisdiction to grant a new trial as to them.
Several Rules of Civil Procedure have relevancy to the resolution of the question posed. It becomes our duty, if possible, to harmonize these rules, the application of which, under the circumstances before us, appear dissonant. In this effort we must heed the admonition of Rule 1(a), R.C.P. Colo., that our procedural rules 'shall be liberally construed to secure the just, speedy, and inexpensive determination of every action.'
First to be considered are the pertinent parts of Rule 41(b)(1), which are as follows:
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Denver Air Center v. District Court For Twentieth Judicial Dist. of State of Colo.
...Westminster v. Phillips-Carter-Osborn, Inc., 164 Colo. 378, 382-83, 435 P.2d 240, 243 (1967); Graham v. District Court in and for Jefferson County, 137 Colo. 233, 236, 323 P.2d 635, 636 (1958). C.R.C.P. 98(c) first provides that actions shall be tried in the county in which any of the defen......
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...The final judgment of dismissal in Case No. 16890 after an adjudication on the merits constitutes res judicata. Graham v. District Court, 137 Colo. 233, 323 P.2d 635. Fourth, we disapprove of the court's dismissal without prejudice of defendant Gregory's counterclaim. One of the basic princ......
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Rule 59 MOTIONS FOR POST-TRIAL RELIEF.
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Rule 41 DISMISSAL OF ACTIONS.
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