Oman v. Morris

• Decision Date: 17 March 1970
• Docket Number: No. 22827,No. 70-073,70-073,22827
• Citation: 28 Colo.App. 124,471 P.2d 430
• Parties: Anna G. OMAN, Plaintiff in Error, v. Robert L. MORRIS, Esther Parker McClain, Mary Parker Morris, and Harry H. Parker, Defendants in Error, and Eddie E. Uhler and Opal R. Uhler, Intervenors and Defendants in Error. (Supreme Court) . II
• Court: Colorado Court of Appeals

Page 430

471 P.2d 430

28 Colo.App. 124

Anna G. OMAN, Plaintiff in Error, v. Robert L. MORRIS, Esther Parker McClain, Mary Parker Morris and Harry H. Parker, Defendants in Error and Eddie E. Uhler and Opal R. Uhler, Intervenors and Defendants in Error.

No. 70-073 (Supreme Court No. 22827.)

Colorado Court of Appeals, Div. II.

March 17, 1970.

Rehearing Denied April 2, 1970.

Certiorari Denied June 11, 1970.

Franklin C. Douglas, Denver, for plaintiff in error.

Arnold, Ross & Leh, Sterling, for defendants in error.

COYTE, Judge.

This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.

Anna G. Oman, plaintiff in error defendant below will hereafter be referred to as defendant. Robert L. Morris et al., defendants in error plaintiffs below will hereafter be referred to as plaintiffs. Eddie and Opal Uhler, defendants in error defendants below will hereafter be referred to as the 'Uhlers.'

Involved herein is an appeal from the trial court's judgment granting strict foreclosure to the plaintiffs. The pertinent facts are as follows: In 1954 plaintiffs contracted to sell an apartment building to the Uhlers. In 1961 the Uhlers assigned their interest in the contract, one-half to Mildred and Lavern Oman and one-half to defendant, but continued to remain liable under the terms of the contract. The interest of Mildred and Lavern Oman was subsequently transferred to defendant, and they are not parties to this proceeding.

In December, 1965 plaintiffs initiated suit for strict foreclosure against the Uhlers and defendant for failure to make the required payments on the apartment house. In April, 1966 plaintiffs requested the appointment of a receiver. No objection to this request was made by defendant. In May, 1966 a receiver was appointed by the trial court. Trial was held before the court in December, 1966, and judgment for plaintiffs of strict foreclosure was entered on December 30 of that year.

The judgment granted defendant 50 days in which to redeem. In case of failure to redeem by defendant, the Uhlers were given an additional 10 days in which to redeem. Motions for new trial were made by both the Uhlers and defendant and were set for hearing on January 24, 1967. Defendant subsequently requested an extension of time and the hearing was rescheduled and heard on February 21, 1967.

The 50-day period for redemption expired February 18, 1967. Defendant did not give notice of intent to redeem, and she did not file a motion for stay of execution. The Uhlers exercised their option to redeem by filing notice of intent to redeem on February 28, 1967.

After denial of her motion for a new trial, defendant sued out a writ of error from the Supreme Court, which was issued on March 1, 1967. On March 20, 1967, the trial court entered its order confirming title in Uhlers.

Before proceeding with defendant's allegations of error, one more pertinent fact should be mentioned. Defendant lodged the reporter's transcript with the Clerk of the District Court 129 days after her motion for new trial was denied. The transcript, on plaintiffs' motion, was stricken by order of the Supreme Court, since it was not submitted within 60 days as required by R.C.P. Colo. 112(f), and is not before this court.

Where there is no transcript before the court on appeal, the regularity of the trial court's judgment and the competency of the evidence upon which that judgment is based must be presumed. Stuckman v. Kasal, 158 Colo. 232, 405 P.2d 948; Burton v. Garner, 150 Colo. 529, 374 P.2d 707. We are therefore limited in our review to those items of error which do not necessitate consideration of the transcript. Business and Product Promotion, Inc. v. East Tincup, Inc., 154 Colo. 268, 389 P.2d 851; Meagher v. Neal, 130 Colo. 7, 272 P.2d 992.

Defendant contends that the appointment of a receiver was improper in this case. Such contention is without merit. R.C.P. Colo. 66(a), provides:

'(a) When Appointed. A receiver may be appointed by the court in which the action is pending at any time:

(1) Before judgment, provisionally, on application of either party, when he establishes a prima facie right to the property, or to an interest therein, which is the subject of the action and is in possession of an adverse party and such property, or its rents, issues and profits are in danger of being lost, removed beyond the jurisdiction of the court, or materially injured or impaired; * * *.'

The appointment of a receiver is normally addressed to the sound discretion of the trial court. Rigel v. Kaveny, 133 Colo. 556, 298 P.2d 396. Unless there is a clear abuse of discretion shown, this decision will not be upset upon review.

Nothing in the record before us indicates any such abuse of discretion. Plaintiffs' petition for the appointment of a receiver was sufficient to establish a prima facie showing of the need for a receiver; particularly, where there was to objection made by defendant to the appointment. Where she failed to object, she is deemed to have acquiesced in the court's action.

Defendant also contends that she was denied her redemptive rights when the trial court granted her but 50 days in which to redeem, the 50 days commencing upon entry of judgment. In this regard defendant alleges; first, that she was entitled to 6 months to redeem according to C.R.S.1953, 118--9--3; and secondly, that the period of redemption must commence upon the denial of the motion for new trial, not the date of entry of judgment.

In contending that she has the 6-month statutory period in which to redeem, defendant relies on Self v. Watt, 128 Colo. 61, 259 P.2d 1074. However, the Self decision specifically states on page 65 of the Colorado Report, 259 P.2d on page 1076:

'An application for a strict foreclosure under an executory contract to shut out the rights of a purchaser is addressed to the sound discretion of the court, and the time allowed the purchaser to make payment of the arrears is largely with the discretion of the trial court. * * *'

In Self where the purchaser was 6 months in arrears on date of judgment the court granted him 30 days in which to redeem. In this case where the defendant is over one year in arrears, a 50-day redemption period would appear to be both reasonable and equitable.

We disagree with defendant's claim that the period of...