People ex rel. Bear Creek Development Corp. v. District Court of Second Judicial Dist. In & For City & County of Denver, 11254.

• Docket Nº: 11254.
• Citation: 242 P. 997, 78 Colo. 526
• Case Date: November 09, 1925
• Court: Supreme Court of Colorado

242 P. 997

78 Colo. 526

PEOPLE ex rel. BEAR CREEK DEVELOPMENT CORPORATION et al.
v.
DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR CITY AND COUNTY OF DENVER.

No. 11254.

Supreme Court of Colorado, En Banc.

November 9, 1925

Original prohibition by the People, upon the relation of Bear Creek Development Corporation and others, against the District Court of the Second Judicial District in and for the City and County of Denver. On demurrer to the petition, and on motion to quash the order to show cause and to quash the restraining order issued pursuant thereto.

Demurrer and motions overruled.

[78 Colo. 527] Quaintance & Quaintance, of Denver (Halsted L. Ritter, of Denver, of counsel), for petitioners.

Henry E. May and Milnor E. Gleaves, both of Denver, for respondent.

DENISON, J.

[78 Colo. 528] This is a petition for writ of prohibition to restrain the Denver district court from proceeding in an action brought by the city of Denver to condemn lands in Jefferson county for park purposes. We issued a rule to show cause. The city has demurred to the petition and also answered it.

The petitioners, defendants below, moved to change the place of trial of that action to Jefferson county under the Code of 1921, § 26, which reads as follows:

'All actions affecting property, franchises or utilities whether by foreclosures, appointment of receivers, or otherwise, shall be tried in the county where such property, franchise or utility is situated, or in the county where the greater part thereof is situated. And it shall be the duty of the court, upon application of any party [242 P. 998] to the action or interested in the subject matter, at once to transfer any case to the county in which such property, franchise or utility is situated. After the application is made, the court shall have no jurisdiction, except for the purposes of entering the order of transfer. (L. '05, p. 166, § 1; Code '08, § 26.)'

Since the matter is prohibition, the ultimate question before us is whether the court below had jurisdiction. The only objection to its jurisdiction is what said act says; consequently the only question which we have any right to decide is whether the petitioners were entitled, under said section, to a change of place of trial. The action below is to take private property for public use; it is, therefore, an action affecting property. It follows that the court has no further jurisdiction over the case.

The city seeks to escape this conclusion by the proposition that the proceeding is under S. L. 1911, ch. 129, a special proceeding under a special statute which supplies a complete procedure, and so is not subject to the provisions of the Code, and that it specifically provides that the action shall be brought in Denver, and thus precludes its removal. The city also relies on her charter, but that instrument cannot repeal the Code or control the jurisdiction of the courts.

[78 Colo. 529] It was held that in procedure under a special act of eminent domain the Code rules as to amendments of pleadings did not apply, but this was...