Marsh v. Warren, 16862

• Decision Date: 22 September 1952
• Docket Number: No. 16862,16862
• Citation: 126 Colo. 298,248 P.2d 825
• Parties: MARSH et al. v. WARREN et al.
• Court: Colorado Supreme Court

Page 825

248 P.2d 825

126 Colo. 298

MARSH et al. v. WARREN et al.

No. 16862.

Supreme Court of Colorado, en Banc.

Sept. 22, 1952.

Fred S. Caldwell, Denver, for plaintiffs in error.

No appearance for defendants in error.

MOORE, Justice.

We will herein refer to the parties by name. Stripped of nonessentials this case involves the allegations set out in a complaint filed by Wilbur C. Marsh, David W. Eads and Florene M. Eads, in which the named defendants were Clara B. Helme, Frances E. Hastings, Mary Lucille Hastings, James B. Warren and Della M. Warren. Plaintiffs in their complaint present a claim for the reformation of deeds of conveyances of real estate, based upon an alleged mutual mistake in the description of property conveyed by a deed executed by Marsh to Helme in the year 1928. Judgment of reformation of this deed is demanded, together with the correction of all subsequent mistakes which grew out of it including reformation of the deed of February 24, 1951, from Helme, Hastings and Hastings to the Warrens.

The Warrens filed an answer in which they denied the essential facts alleged in the complaint.

Prior to the date of trial, after request for admissions had been served on some of the defendants and appearances had formally been entered by defendants other than the Warrents, plaintiffs March, Eads and Eads entered into a stipulation with the defendants Helme, Hastings and Hastings, the effect of which was to confess all facts alleged in the complaint of the plaintiffs; and thereupon Helme, Hastings and Hastings withdrew from further participation in the case in the trial court. Any rights which might be asserted by Warrens in the property involved in the alleged misdescription were based upon deeds executed by Helme, Hastings and Hastings who thus in effect confessed judgment. The positions of Helme, Hastings and Hastings and the Warrens were identical, in that if the reformation prayed for were to be granted, certain property actually included within the legal descriptions set forth in their respective deeds would be removed therefrom and the ground thus removed would be restored to Eads and Eads who claimed under March as grantee in the deed conveying the lands in dispute, along with other property.

An order was entered following the pretrial conference which was as follows:

'(1) That Plaintiffs' Pretrial Exhibit No. 1, being an abstract of title covering the property described in the complaint, may be admitted in evidence at the trial without further identification; that entries numbered 61, 62, 63, 64, 67, 69, 70, 71, 72 and 73 of the abstract of title referred to may and will be received at the trial as evidence of the conveyances referred to in each of said numbered entries without further proof.

'(2) That Plaintiffs' Pretrial Exhibit No. 2, being the plat referred to in entry No. 24 of the abstract of title, marked Plaintiffs' Pretrial Exhibit No. 1, may be introduced and received in evidence at the trial without further proof.

'(3) That Plaintiffs' Pretrial Exhibit No. 3 may be received for the purpose of showing substantial location of buildings and improvements designated thereon.

'(4) That the deed marked Defendants' Pretrial Exhibit No. 4 may be received on the trial of said cause without further identifications.

'(5) That the attorney for the plaintiff and the attorneys for the defendants Warren will exchange the names of witnesses at least 15 days prior to the date set for the trial of this cause.

'(6) That the issue for trial in this cause will be limited to the question of whether or not a mutual mistake was made in the execution and delivery of certain conveyances as set forth in Plaintiffs' Complaint.'

The cause came on for trial to the court and the exhibits referred to in the pretrial order were received in evidence.

Counsel for Marsh, and Eads and his wife, introduced in evidence the interrogatories which had been addressed to the Warrens, together with their joint answers thereto. Also received in evidence were the request for admissions addressed to the Warrens and their joint answers thereto. After the exhibits were received in evidence, as provided by the pretrial order, counsel for plaintiffs Marsh and Eads made the following statement:

'Now, the plaintiffs request the Court to take judicial notice of the stipulation and agreement on file herein between the plaintiffs and the codefendants Clara B. Helme, Frances E. Hastings, and Mary Lucille Hastings to enter judgment of reformation in accordance therewith, and to accept such judgment as prima facie proof against the defendants James B. Warren and Della M. Warren.'

Consel pointed out specifically that he sought the entry of judgment against the defendants who had signed the stipulation, and stated that the Warrens were not mentioned therein and that it was not binding upon them. The court stated:

'In the Pre-trial order we stated that the issues for trial in this cause would be limited to the question of whether or not a mutual mistake was made in the execution and delivery of certain conveyances as set forth in the plaintiffs' complaint. In this form of judgment presented by Mr. Caldwell it makes it very plain if we grant that judgment as between original parties, we reform those conveyances without, in my opinion, giving the defendants Warren an opportunity to be heard. I am still of the opinion as I was heretofore that we should decline to sign your judgment now. It is so ordered.'

Thereupon the following occurred:

'Mr. Caldwell: Then the order of the Court is to refuse to enter judgment.

'The Court: At this time.

'Mr. Caldwell: On the stipulation.

'The Court: That is right, yes, sir.

'Mr. Caldwell: Well, I object to that, and let the record show that the plaintiffs would then rely upon such judgment as prima facie evidence of the mutual mistake as against the Warrens, in view of the order made at the Pre-trial conference, wherein the Court held that the Warrens are not bons fide purchasers for value without notice, and the plaintiffs would then offer and rely upon that judgment as prima facie evidence, and would rest their case. Now, since the Court refuses to enter judgment on the stipulation or in accordance with the stipulation and agreement, the plaintiffs cannot proceed further, and they elect to stand upon their right to have judgment entered upon the stipulation and agreement, and the right to have that judgment introduced as evidence in the case.'

No further evidence was offered by Marsh and Eads; no witness was called; and thereupon counsel for Warrens moved for a dismissal of the action. The court sustained the motion and the action was dismissed. The original plaintiffs in the trial court and those defendants who were parties to the stipulation seek reversal of the judgment by writ of error.

With reference to the statements of counsel, above quoted, that at a pretrial conference the trial court 'held that the Warrens are not bona fide purchasers for value without notice,' suffice it to say that the record before us discloses no such order. Under the pleadings in this case, issues of fact were joined upon that question, and, in the absence of an agreement between the parties affected, this issue, as made by the pleadings for determination upon the trial, could not be resolved against the Warrens by order made upon pretrial conference. McCoy v. District Court of Larimer County, 125 Colo. --, 246 P.2d 619.

At another point in the controversy, after the trial court had refused to enter judgment on the stipulation, counsel for plaintiffs Marsh and Eads stated:

'Now, of course, we have no judgment to offer in evidence, but we want the record to show that when such judgment is entered, then we would offer that judgment in evidence, or ask that the Court take judicial notice of it for the purpose of establishing the prima facie evidence of the mutual mistake, as against the Warrens.'

The trial court made its position clear by the following statement:

'Our trouble is that our only difficulty, Mr. Caldwell, is the effect to be given this stipulation. That is the difficulty. The stipulation seems to me to be so unjust, and shall we say, I wouldn't want to say illegal, but let's say unjust, in asking the Court to take as evidence this agreement between all the parties except the Warrens, and then use that as evidence in granting this judgment.'

It is clear that the trial court considered the problem presented as the two phases thereof were related to each other. Entry of the requested judgment was temporarily withheld as a means of requiring the production of competent evidence against the Warrens in support of the allegations of the complaint.

The legal maneuvering of counsel for plaintiffs, under which it was proposed that a written stipulation--which was wholly without evidentiary value against Warrens--should be elevated to the status of a judgment against defendants other than Warrens, then offered as 'prima facie' evidence against the Warrens, was calculated to shift the burden of going forward with evidence from the plaintiffs to the defendant Warrens. The trial court did not like the prospect of giving to the stipulation, which was a hearsay instrument so far as the Warrens were concerned, a status in the form of a judgment which might conceivably be used against them to their disadvantage. Actually two separate and distinct questions were involved in the plaintiffs' proposal.

The first question involves the right of plaintiffs to have judgment entered against those defendants who had stipulated for the entry thereof. We direct attention to the fact that the judgment requested was a consent judgment, and as such is distinguishable in some respects from those resulting from contested litigation carried to conclusion by judicial...