Horlbeck v. Walther

• Decision Date: 12 December 1955
• Docket Number: No. 17697,17697
• Citation: 291 P.2d 688,133 Colo. 19
• Parties: Richard F. HORLBECK and Ruth S. Horlbeck, Plaintiffs in Error. v. Leona WALTHER, Defendant in Error.
• Court: Colorado Supreme Court

Page 688

291 P.2d 688

133 Colo. 19

Richard F. HORLBECK and Ruth S. Horlbeck, Plaintiffs in Error. v. Leona WALTHER, Defendant in Error.

No. 17697.

Supreme Court of Colorado, En Banc.

Dec. 12, 1955.

Rehearing Denied Jan. 16, 1956.

Howard E. Erickson, Denver, for plaintiffs in error.

Elias J. Candell, Lakewood, for defendant in error.

MOORE, Justice.

This case was before us in cause No. 17428. On January 17, 1955, we dismissed the writ of error for the reason that, 'Nowhere in the record submitted by plaintiffs in error does it appear that a judgment was entered against them in the trial court.' Horlbeck v. Walther, Colo., 279 P.2d 434. Petition for rehearing was denied January 31, 1955.

March 12, 1955, plaintiffs in error here, who were defendants in the district court action, filed their petition in the trial court in which it was alleged that on February 6, 1954, the trial court, 'Entered its findings and memorandum of decision,' and directed the entry of judgment against them in the sum of $3,643.80; that the clerk inadvertently failed to enter judgment, as directed, in the registry of actions, 'commonly called the Docket Book of said Court; and failed to enter any judgment whatever'; that due to the absence of any judgment the Supreme Court dismissed the writ of error; that the Judgment Book of the trial court records contained entries in which defendants were identified as judgment debtors, and plaintiff as the judgment creditor, in the sum of $3,643.80; and that based on said entry plaintiff was preparing to levy execution to effect collection of said amount.

The prayer of the petition was that the court decree:

'1. That no judgment entered in this Court pursuant to its direction of February 6, 1954; or otherwise;

'2. That the recording of the judgment in Judgment Book A, at Page 83, was a nullity and that the Clerk of this Court be directed to delete the entry of said Judgment from said Judgment Book;

'3. That Plaintiff and her attorney be restrained from attempting execution thereon;

'4. That the issuance of any transcripts of judgment heretofore made or given by said Clerk of said Court be declared a nullity and void and that the recording of the same be held for naught;

'5. For such and other and further relief as to this Court may deem meet and proper in the premises.'

Upon hearing of this petition the trial court decreed as follows:

'Now Therefore The Court again directs the Clerk to enter judgment in this case in accordance with the direction contained in said 'Statement of Court, Memorandum of Decision, Direction for Vacation of Former Judgment, and Entry of New Judgment' dated February 6, 1954 in the Civil Order Book, sometimes known as Civil Judgment Book, and also in the Civil Docket, and immediately thereafter to enter the same or note said judgment in its Judgment Docket.

'Further, that said judgment be entered as of March 24, 1955.

'Done and dated in Chambers at Golden this 24th day of March, 1955.'

Motion for new trial was dispensed with and judgment was entered pursuant to said direction.

On behalf of plaintiffs in error it is argued that the action of the trial court in vacating the court order entered in 1954, and directing the entry of judgment as of March 1955, was correct, and that as to that phase of the controversy the trial court should be sustained. Reversal of the judgment is sought upon determination of questions going to the merits.

Counsel for defendant in error argues that any further action taken by the trial court relating to entry of judgment beyond that ordered in 1954 should have been nunc pro tunc as of that date; that to hold otherwise would be to deny lawful interest upon the judgment to which he was entitled as of that date; and that 'a trial court may not extend the time for review by writ of error beyond the time provided for by the Rules of Civil Procedure by determining the date at which a judgment shall be entered on the records of the Court.'

The contentions of the parties as above set forth relate exclusively to procedures which followed the action of this Court in dismissing the writ of error in cause No. 17428. We are now called upon to consider the merits of the contentions made by the parties and this involves the factual situation hereinafter set forth.

July 10, 1951, defendant in error executed a promissory note for $10,000 payable to the order of plaintiffs in error in monthly installments of $100 or more plus interest thereon at the rate of eight per cent per annum. Plaintiffs in error were not licensed money lenders. To secure payment of this loan defendant in error executed a first deed of trust upon real estate located at Evergreen, Colorado, and also a chattel mortgage covering certain furniture and fixtures in and upon said real estate. Although the note which she signed was for the principal sum of $10,000 she actually received only $9,000. Two monthly payments, aggregating $332.66, were made by her on this note. In May, 1952, foreclosure proceedings were instituted by plaintiffs in error resulting in the issuance of a certificate of purchase to them on June 30, 1952, and, pursuant to the terms of the chattel mortgage the property covered thereby was sold at private sale for the sum of $399.10. The amount bid by plaintiffs in error at the real estate foreclosure sale was $11.000. The amount of indebtedness claimed to be due them at the time of the foreclosure sale, as provided by the promissory note and deed of trust, was $11,399.10. Thus as a result of the real estate foreclosure and the amount realized at the chattel mortgage sale, the exact amount claimed by plaintiffs in error to be due on the note was paid. Defendant in error did not redeem, and a trustee's deed issued for the real estate January 6, 1953. February 24, 1953, she filed her complaint in which she sought to recover from plaintiffs in error treble the amount of overcharges alleged to have been received by them in connection with the above mentioned loan transaction.

Questions to be Determined.

First: When a writ of error is dismissed for the reason that no judgment was entered against plaintiffs in error upon conclusion of the trial; and where application is made for the entry of a final judgment in the trial court, following dismissal of the writ of error in the Supreme Court; did not trial court commit error in entering said judgment as of the date upon which that action was taken even though thirteen months elapsed between the conclusion of the trial and the formal entry of the judgment following dismissal of the first writ of error?

This question is answered in the negative. We must bear in mind that the opinion of this Court in Horlbeck v. Walther, supra, is the law of the case. In that case we held that no judgment had been entered by the trial court. We said that although the trial judge had directed the entry of a judgment on February 6, 1954, that direction had not been carried out. If we were to hold that the judgment subsequently entered should have been nunc pro tunc as of February 6, 1954, it would have been impossible for plaintiffs in error to seek review by writ of error within ninety days of the date of judgment. Having held that under the record as originally presented here there was no final jugment to which a writ of error could be directed, the trial court, upon consideration of the motion for the entry of a final judgment, was required to choose between two alternatives. On the one hand it could preserve to plaintiffs in error the right to review by dating the judgment as of the time actually entered. By that choice defendant in error was deprived of interest which otherwise might have accrued. The second alternative was to enter judgment nunc pro tunc making it impossible for plaintiffs in error to seek review within ninety days of the effective date of the judgment.

Under the circumstances of this case we do not think that the trial court committed error in choosing the first of the alternatives above mentioned. If, under the...