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

• Decision Date: 09 November 1925
• Docket Number: 11254.
• Citation: 242 P. 997,78 Colo. 526
• Parties: PEOPLE ex rel. BEAR CREEK DEVELOPMENT CORPORATION et al. v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR CITY AND COUNTY OF DENVER.
• Court: Colorado Supreme Court

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.

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.

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 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.

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 because that eminent domain act contained provisions for amendment. Knoth v. Barclay, 8 Colo. 300, 301, 302, 6 P. 924. Where there are no directions as to procedure in the special act, the Code comes in, as appears in Colo. Cent. R. Co. v. Humphrey, 16 Colo. 34, 37, 26 P. 165, where this court declares that the court below erred in not following the Code. In Denver & R. G. R. Co. v. Griffith, 17 Colo. 598, 31 P. 171, the question was whether the defendant ought to have had opportunity to answer, and the court said No, for the reason that no answer was necessary because 'it seems to be the intent and object of the [eminent domain] act that the cause shall be heard alone upon the petition, no answer or reply being necessary.' Such is not the case with the act of 1911. See section 5. Tripp v. Overocker, 7 Colo. 72, 1 P. 695, merely holds that since the act provides for a method of procedure, it must be followed and a civil action under the Code is improper.

None of the cases cited by the city go any farther than the above. They do not support the claim that there can be no change of place of trial and we cannot assent to such a proposition. Any of the other ordinary grounds for change of place of trial might exist; local prejudice, disqualification of judge, convenience of witnesses, etc. Is it possible that the Legislature intended to deny all these in condemnation suits?

It is urged that since the commissioners must be freeholders of Denver the trial must be there. It does not follow. However unwise such a proceeding may be, the Legislature may so provide. Martin v. People, 69 Colo. 60, 61, 168 P. 1171. There is nothing in the act of 1911 inconsistent with the right of change. Its effect is that the action must be brought in the county of the plaintiff municipality, but this court, ever since the case of Fletcher v. Stowell, 17 Colo 94, 28...