Minshall v. Pettit
| Decision Date | 25 February 1963 |
| Docket Number | No. 20088,20088 |
| Citation | 379 P.2d 394,151 Colo. 501 |
| Parties | Shirley B. MINSHALL and Ruth P. Minshall, and Chester D. McPherson, Plaintiffs in Error, v. Walter I. PETTIT and Jennie J. Pettit, Lloyd L. Einspahr and Lucille I. Einspahr, Guthrie L. Puckett and Edith C. Purckett, Edward E. Scherer and Marilyn M. Scherer, Defendants in Error. |
| Court | Colorado Supreme Court |
Holland & Hart, William C. McClearn, Warren L. Tomlinson, Denver, for plaintiffs in error Shirley B. Minshall and Ruth P. Minshall.
Roy H. McVicker, Jr., Wheat Ridge, Patricia H. Maloy, Denver, for defendants in error.
This writ of error was directed to the action of the trial court in granting a temporary injunction whereby the plaintiffs in error were precluded for the time-being (in order to preserve the status quo) from erecting a multiple unit apartment house in a subdivision which, in its inception, contained restrictive covenants as to each of the building sites prohibiting the erection of any improvements thereon save single family dwellings.
Had the parties limited themselves to the issue of whether the temporary injunction should be granted to preserve the status quo pending final determination, we would not have a voluminous record such as that before us. The parties spent five days in what was actually a trial on the merits of the case as though the issues had been framed on the question of a permanent injunction and adjudication on the validity of the restrictive covenants. We are urged to overlook the rules and to determine this writ of error on the merits, notwithstanding that after the five day hearing, which the plaintiffs in error contend 'was not a trial'; no motion for a new trial was filed and no order was entered by the court dispensing therewith. R.C.P. 59(b) and (f).
It is the contention of the plaintiffs in error that such a motion does not apply to writs of error brought to determine the validity of the court's action in granting or denying a temporary injunction under Rule 111(a), R.C.P. This contention is without validity.
In Kopff v. Judd, 134 Colo. 330, 304 P.2d 623, this court quite clearly, we think, announced that the decision there was made 'in order to set at rest' the speculation as to when Rule 59, R.C.P. (b) and (f) applies. In Colorado State Board, etc. v. Marshall, 136 Colo. 200, 315 P.2d 198, we restated the holding of the Kopff case and said that the rule was meant to apply to actions in the nature of certiorari where admittedly no 'trial de novo' is held. On the same day three other cases were dismissed for the same reason, and all appear in volume 136 of...
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Danielson v. Kerbs Ag., Inc.
... ... The purpose of a motion for a new trial is to give the trial court an opportunity to correct alleged errors. See, e.g., Minshall v. Pettit, 151 Colo. 501, 379 P.2d 394 (1963); Walter v. Walter, 136 Colo. 405, 318 P.2d 221 (1957). Here, it is undisputed that the State Engineer ... ...
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...no appeals were taken therefrom. C.A.R. 1(a)(3). Thus, we do not reach appellants' arguments on their merits. Minshall v. Pettitt, 151 Colo. 501, 379 P.2d 394 (1963), and cases cited therein; C.R.C.P. 59(f). A collateral attack on the TRO or the preliminary injunction contained in a motion ......
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...a new trial is to enable the trial court to correct any errors it might have made in the course of the proceedings. Minshall v. Pettit, 151 Colo. 501, 379 P.2d 394 (1963). C.R.C.P. 59(b) provides that '(a) motion for a new trial shall be filed not later than ten days after the entry of the ......