Maryland Cas. Co. v. City & County of Denver, 12557.
| Decision Date | 23 November 1931 |
| Docket Number | 12557. |
| Citation | 6 P.2d 6,90 Colo. 20 |
| Parties | MARYLAND CASUALTY CO. v. CITY AND COUNTY OF DENVER. |
| Court | Colorado Supreme Court |
In Department.
Error to District Court, City and County of Denver; Geo. F Dunklee, Judge.
Action by the Maryland Casualty Company against the City and County of Denver. To review a judgment dismissing the suit plaintiff brings error.
Affirmed.
S.D Crump, of Denver, for plaintiff in error.
George Hetherington and Thomas H. Gibson, both of Denver, for defendant in error.
A single question is here presented: Did the trial court err in permitting the defendant, city and county of Denver, to plead the statute of limitations after the action had been set for trial upon issues joined on the merits only?
On October 31, 1928, the Maryland Casualty Company filed its complaint charging the defendant with causing the death of one Max Diamond by its negligence, and alleging a settlement by plaintiff under the Workmen's Compensation Act (C. L. §§ 4375-4525, as amended), subrogation of the rights of the widow of deceased in plaintiff's favor, and praying for judgment of $3,750, the amount paid by plaintiff in liquidation of the widow's claim.
Defendant city and county of Denver, appeared and filed motions to make the complaint more definite and certain and a general demurrer which were overruled, and on March 5, 1929, filed its answer denying negligence and alleging contributory negligence of the deceased, to which a replication was filed. The case was set for trial to a jury upon April 9, 1929, and continued to May 7, 1929.
On May 2, 1929, defendant served plaintiff notice that on the following morning it would ask leave to file an amended answer, and in support thereof one of the attorneys for defendant filed the following affidavit: 'That he is the attorney who drew the answer in the above entitled cause; that he is one of the attorneys of the said City and County of Denver; that at the time of drawing said answer his time was very much occupied with other actions and business of the said City and County of Denver, and through inadvertence he failed to insert in said answer the third and fourth defenses, which are now incorporated in the amended answer, which is sought to be filed herein by leave of court; that this matter was called to the attention of affiant only two days prior to the drawing of said amended answer and giving opposite side notice thereof; that application for leave to file said amended answer is made in good faith and that the ends of justice may be accomplished.'
The amended answer, setting forth the two-year statute of limitations (C. L.§ 4170), was permitted to be filed over plaintiff's...
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Flanders v. Kochenberger
...Casualty Co. v. City and County of Denver, 90 Colo. 20, 6 P.2d 6, and many other decisions announced by us. In Maryland Casualty Co. v. City and County of Denver, supra, after issue joined, an amended answer setting forth as special defense the statute of limitations was tendered, and, by o......