Noice v. Jorgensen

• Decision Date: 18 February 1963
• Docket Number: No. 19952,19952
• Citation: 378 P.2d 834,151 Colo. 459
• Parties: W. Vincent NOICE and Elizabeth R. Noice, Plaintiffs in Error, v. B. H. JORGENSEN, Defendant in Error.
• Court: Colorado Supreme Court

Page 834

378 P.2d 834

151 Colo. 459

W. Vincent NOICE and Elizabeth R. Noice, Plaintiffs in Error, v. B. H. JORGENSEN, Defendant in Error.

No. 19952.

Supreme Court of Colorado, In Department.

Feb. 18, 1963.

Loesch & Kreidler, Montrose, for plaintiffs in error.

Bratton & Whittington, Seraphine & Alexander, Gunnison, for defendant in error.

McWILLIAMS, Justice.

By writ of error the Noices seek reversal of a judgment of the trial court that Jorgensen is the owner of a ten foot strip of land constituting the perimeter of a small island lying between two arms of the west branch of the Gunnison river, this so-called 'fishing strip' being decreed to be held by Jorgensen 'in trust nevertheless, for use by the public for fishing purposes only.'

The Noices contend that they own the entire surface of this small island, subject to this 'ten foot easement on the shore for fishing', and that the trial court accordingly erred in quieting title in Jorgensen to the aforementioned strip of land, thereby encompassing and surrounding the balance of the island which admittedly is owned by the Noices.

Specifically, the Noices argue that the trial court erred in admitting and considering parol evidence which, they say, tended to vary and contradict the express terms of certain deeds. They contend that the several deeds, coupled with other documentary evidence, clearly established that it was the intention of all concerned that the Noices should acquired and own the entire surface of the island.

At the very outset Jorgensen contends that from a procedural standpoint this writ of error must be dismissed for failure of the Noices to comply with the mandatory requirements of Rule 59(f), R.C.P.Colo. The Noices concede that they did not file a motion for new trial, and also that the trial court did not by appropriate order dispense with the necessity therefor.

This being the admitted state of the record, Jorgensen urges that the writ be dismissed for failure to comply with Rule 59. As additional authority therefor he cites Kopff v. Judd, 134 Colo. 330, 304 P.2d 623, and Boyd v. Adjustment Bureau, 148 Colo. 233, 365 P.2d 813. In Kopff v. Judd, supra, it was declared:

'In order that the matter may be finally set at rest, we hold that under the Rules of Civil Procedure a motion for new trial must be filed, or an order dispensing therewith be entered, as a prerequisite to the right of a party to seek review in this court. This rule applies in cases where a review of a pure question of law is sought, as well as for a review of questions of facts'. (Emphasis supplied)

The Noices initially resist dismissal of the writ of error by stating it was the 'intention' of all concerned, i. e. counsel for Noices and Jorgensen and the trial court that the judgment should contain an order dispensing with a motion for new trial, but that through 'oversight' such was omitted from the written judgment eventually signed by the trial court. It should be noted that present counsel for Jorgensen did not represent him in the trial court.

Careful perusal of the record fails to disclose any evidence of an 'informal understanding' that there would be an order dispensing with a motion for new trial. Hence, the question posed is whether we are to be governed by the record as made, or by what the Noices in their brief contend was 'intended to be done', but in fact was not, ostensibly through oversight. Under such circumstances we are, of course, bound by the record, and can not add to it at this stage of the proceeding on the basis of a unilateral suggestion contained in the brief of one of the disputants. There is nothing before us to indicate that Jorgensen, his counsel, or the trial court, acquiesces in Noices' statement that it was the intention of all that the final judgment should dispense with a motion for new trial.

The Noices alternatively argue that even though they 'intended' that the judgment ultimately signed by the trial court should dispense with a motion for new trial, the omission under the particular circumstances is not fatal since they in effect, if not in name, did file a motion for a new trial. In this regard they contend that though they did not file a motion for a new trial, they nevertheless did file certain 'Objections and Exceptions to Findings of Fact and Conclusions of Law', and urge that this is the equivalent of a motion for new trial and constitutes substantial compliance with Rule 59. In this belief they are mistaken, and a brief recital of the sequence of the proceedings will demonstrate why.

The Noices originally alleged that Jorgensen was trespassing on their property with resultant damage, and prayed for compensatory and exemplary damages. Jorgensen by answer denied the trespass, claimed that the land on which he was allegedly committing the trespass was actually owned by him, and counterclaimed that the Noices were trespassing on his property. By amended complaint the Noices sought a 'complete adjudication of the rights of the parties'.

The matter was tried to the court in October 1960, some seven witnesses being examined. The root of this controversy is the fact that both the Noices and Jorgensen were grantees in separate deeds from a common...