People v. Cory

• Decision Date: 24 September 1973
• Docket Number: No. 25982,25982
• Citation: People v. Cory, 514 P.2d 310, 183 Colo. 1 (Colo. 1973)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Paul F. CORY et al., Defendants-Appellants.
• Court: Colorado Supreme Court

Page 310

514 P.2d 310

183 Colo. 1

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Paul F. CORY et al., Defendants-Appellants.

No. 25982.

Supreme Court of Colorado, En Banc.

Sept. 24, 1973.

Floyd Marks, Dist. Atty., Ronald M. Andersen, Deputy Dist. Atty., Commerce City, for plaintiff-appellee.

Schwartz & Snyder, Arthur Schwartz, Frank P. Slaninger, Denver, for defendants-appellants.

DAY, Justice.

This is an appeal from an injunction issued by the Adams County district court against defendants-appellants.

On May 12, 1972, the district attorney of Adams County instituted proceedings to declare the appellant corporation's drive-in theater a nuisance pursuant to C.R.S.1963, 39--15--1 et seq. The complaint named the defendants as owners and operators of the theater and sought preliminary and permanent injunctive relief. The nuisance sought to be abated was alleged to be the result of certain activities of the defendants, namely, the operation of a drive-in theater and its impact on the surrounding property and its residents.

The district court issued an order to show cause why a preliminary injunction should not issue and set the matter for a hearing on May 22. On that date, the court granted a motion for a continuance and dismissed the suit as to one of the defendants. The hearing on the preliminary injunction was rescheduled for May 31. On May 31, the defendants filed three motions: a motion to dismiss for failure to state a claim, a motion for a more definite statement, and a motion to dismiss the preliminary injunction. The defendants did not file an answer, and the necessity therefor would not arise until the motions were disposed of.

The defendants' motions were denied by the district court. Defense counsel then stated to the court that the defendants were only prepared to proceed with the hearing on the preliminary injunction and not a hearing on the merits of the permanent injunction. Defense counsel further noted that the defendants had yet to file an answer to the complaint. The district court ruled, however, that a public nuisance action was a special statutory proceeding, and consequently not governed by the rules of civil procedure. The defendant, therefore, could not file an answer. The hearing proceeded, a permanent injunction was issued, and the defendants appealed. We reverse.

Under the Colorado statutes, public nuisance suits may be either criminal or civil in nature. C.R.S.1963, 39--15--14. Where a civil action is...