Kopff v. Judd, 18039

• Decision Date: 19 November 1956
• Docket Number: No. 18039,18039
• Citation: 304 P.2d 623,134 Colo. 330
• Parties: Joseph S. KOPFF, Claire M. Kopff, Philadelphia Fire and Marine Insurance Company, and American Insurance Company of New Jersey, Plaintiffs in Error, v. Robert JUDD, Defendant in Error.
• Court: Colorado Supreme Court

Page 623

304 P.2d 623

134 Colo. 330

Joseph S. KOPFF, Claire M. Kopff, Philadelphia Fire and Marine Insurance Company, and American Insurance Company of New Jersey, Plaintiffs in Error, v. Robert JUDD, Defendant in Error.

No. 18039.

Supreme Court of Colorado, En Banc.

Nov. 19, 1956.

Rehearing Denied Dec. 17, 1956.

Walter M. Simon, Francis P. O'Neill, Wm. J. Anderson, Julius F. Seeman, Denver, for plaintiff in error.

Creamer & Creamer, Denver, for defendant in error.

MOORE, Justice.

Plaintiffs in error were plaintiffs and defendant in error was one of two defendants in the trial court. We will refer to the parties by name or as they appeared in the court below.

Joseph and Claire Kopff are the owners of certain real property. They brought suit against defendant Judd and one Guinn and alleged that by reason of the act of Quinn in laying a floor the house caught fire, damaging personal belongings as well as the building. Ancillary attachment proceedings were commenced as to defendant Judd and his real estate was subjected to levy thereunder. The affidavit in attachment was traversed by Judd, and a motion to dismiss for failure to state a claim, together with other motions, was filed by him. An amended complaint was filed in which the insurance companies were joined as plaintiffs as the real parties in interest, having paid the loss suffered by the original plaintiffs Joseph and Claire Kopff. The parties stipulated that the motion filed to the original complaint should be directed to the amended complaint. After argument of these motions the trial court dismissed the amended complaint for failure to state a claim for relief, and dissolved the attachment as having been improperly invoked in the first instance. This action was taken June 6, 1956, and the trial court granted plaintiffs twenty days within which to file a second amended complaint. No such complaint was filed but a 'Motion to Vacate Order Sustaining Judd Motion to Dismiss' was filed by them and this motion was set for hearing. Before the date of the hearing plaintiffs caused writ of error to issue from this court. Apart from the above-mentioned motion, which was not decided, no motion for new trial was filed relating to the dissolution of the attachment writ or the judgment of dismissal, and no order dispensing therewith was entered.

When plaintiffs' motion came on to be heard the trial court was informed of the issuance of the writ of error, whereupon it declined to proceed further on the ground that it had lost jurisdiction. Thereupon plaintiffs filed in this Court their motion in which it is alleged that the only matter to which the writ of error was directed was the judgment entered by the trial court by which the writ of attachment was dissolved. The prayer of said motion is that, 'An order may enter whereby the Clerk of this Court shall be directed to amend said Writ of Error so that the same shall be limited to the issues involved in the attachment proceedings in this case.'

It is argued on behalf of plaintiffs that an order dissolving an attachment is a 'final judgment' to which a writ of error may be directed, and that because the intention of plaintiffs was only to seek review of that order we should now grant their motion.

Counsel for defendant Judd argue that when the trial court granted the motion to dismiss with permission to file an amended complaint, an election of remedies was presented, either to file that amended complaint or to stand on the dismissed complaint and pursue a remedy by writ of error from this Court, and that when plaintiffs filed their praecipe for writ of error, unqualified and unlimited, they elected to pursue the latter remedy and are bound by that election.

Questions to be Determined.

First: When a trial court enters an order in attachment proceedings dissolving the writ and releasing the property involved from the lien thereof, has a 'final judgment' been entered to which a writ of error may be directed?

This question is answered in the affirmative. R.C.P. Colo., 102(aa), applicable to attachment proceedings, provides inter alia:

'Appeals from the county court to the district court and writs of error may be taken and prosecuted from any final judgment or order in such proceedings as in other civil cases. Any order by which an attachment or garnishment is released or sustained is a final judgment.' (Emphasis supplied.)

Thus it is very clear that the express language of the rule adequately disposes of the question.

Second: Where a final judgment has been entered in attachment proceedings, can the party adversely affected thereby proceed on writ of error where no motion for new trial was filed, and no order dispensing with such motion was entered by the trial court?

This question is answered in the negative. Rule 102(aa), R.C.P. Colo., provides in part:

'Motions for new trial may be made in the same time and manner, and shall be allowed in attachment and garnishment proceedings as in other actions.'

Thus is clear that all steps necessary to effectively prosecute error to the usual judgment in civil actions also is essential to validate a writ of error to a final judgment in attachment proceedings.

Rule 59(f), R.C.P. Colo., is as follows:

'The party claiming error in the trial of any case must, unless otherwise ordered by the trial court, move that court for a new trial, and, without such order, only questions presented in such motion will be considered on review.'

We...