Morefield v. Koehn

• Decision Date: 07 October 1912
• Citation: 53 Colo. 367,127 P. 234
• Parties: MOREFIELD, Judge, v. KOEHN.
• Court: Colorado Supreme Court

127 P. 234

53 Colo. 367

MOREFIELD, Judge, v. KOEHN.

Supreme Court of Colorado

October 7, 1912

Error to District Court, Montezuma County; Charles A. Pike, Judge.

Certiorari by Laura H. C. Koehn against J. J. Morefield, as Judge and ex officio Clerk of the County Court of Montezuma County to annul a judgment. There was a judgment granting relief, and defendant brings error. Reversed and remanded.

W. F Mowry, of Cortez, for plaintiff in error.

H. M Hogg, of Cortez, for defendant in error.

MUSSER J.

In a proceeding in certiorari, the district court of Montezuma county annulled a judgment of the county court that had been rendered in favor of Guillet Brothers against Laura H. C Koehn. In response to the writ from the district court, the judge and ex officio clerk of the county court certified the county court record in the case to the district court. It was then the duty of the district court to try the matter upon the record so certified, and not upon the allegations of the petition for the writ, nor upon facts outside the record. People v. County Com'rs, 27 Colo. 86, 59 P. 733. Instead of doing this, the district court apparently tried the matter on the allegations of the petition, and, because certain of those allegations were not denied, took them as true and annulled the judgment. The procedure to be followed in such cases becomes perfectly plain from a reading of chapter 29 of the Revised Code, which relates to certiorari. The application for the writ shall be made on affidavit. The parties to this case and lawyers generally denominate this application a petition. When the writ is granted and the inferior tribunal has certified the record, the petition has served its purpose; for, as this court has said, the matter then proceeds on the record returned. The Code does not require an answer of any kind to the petition. Section 332 says that the court to whom application is made for the writ may require a notice to be given to the adverse party, or may grant an order to show cause why the writ should not be allowed, or may grant the writ without notice.

If notice is given, or an order to show cause is granted, the application may be resisted upon the ground that the petition is insufficient, or that the court is without jurisdiction to issue the writ, or that there is an appeal, or a plain, speedy, and adequate remedy, or any other ground, if there be one, showing that it is not a proper case for the writ. The petition is inspected and taken to be true at this hearing. Counter affidavits, parol evidence, or even the records of the inferior tribunal, are not considered.

If the writ is granted without notice, the question whether the case is a proper one for the issuance of the writ may be tried in the same way on a motion to quash, made before the return. 4 Ency. Pl. & Pr. 195-197. This sufficiently demonstrates the functions of the petition. If this was a proper case for the issuance of the writ, which we do not determine, the extent of the review upon the writ by the district court should have been to ascertain from the record whether the county court regularly pursued its authority. Section 337, Rev. Code. It is to be taken from section 331 that if the county court exceeded its jurisdiction, or the judge thereof greatly abused his discretion, the authority was not regularly pursued.

An inspection of the record of the county court, as returned reveals the following conditions: On the 7th day of June Guillet Brothers filed their complaint against Laura H. C. Koehn on a cause of action within the jurisdiction of the county court. On the 3d day of July the defendant Koehn answered the complaint with a general denial. On the first day of the September term, which was the 8th day of September, the cause was set for trial, upon the motion of...