Princeville Corp. v. Brooks
| Decision Date | 10 March 1975 |
| Docket Number | No. 26685,26685 |
| Citation | 188 Colo. 37,533 P.2d 916 |
| Parties | PRINCEVILLE CORPORATION, Petitioner, v. John BROOKS, Judge of the District Court in and for the City and County of Denver, State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
Rodden & Woods, Richard A. Francis, Denver, for petitioner.
Grant, Shafroth, Toll & McHendrie, P.C., Charles H. Haines, Jr., Denver, for respondent.
This is an original proceeding by petitioner Princeville Corporation (Princeville) for a writ in the nature of mandamus requiring the respondent district court to show cause why it should not authorize foreclosure by the public trustee in accordance with C.R.C.P. 120. We now discharge the rule.
Princeville holds a deed of trust secured by a promissory note executed by Meridian Properties (Meridian). The land thus encumbered comprised approximately 60 acres, platted and subdivided to permit sale of individual lots. The deed of trust contains a power of sale clause.
Meridian has sold lots to separate owners. Many have separate mortgages on their individual plots. None of the lot owners assumed or agreed to pay the deed of trust.
Wishing to recover Meridian's unpaid balance due by foreclosure through the public trustee, Princeville gave its notice of election and demand. Section 38--37--113, C.R.S.1973. In addition, to comply with the Soldiers' and Sailors' Civil Relief Act of 1940 (the Act), Princeville invoked the jurisdiction of the district court under C.R.C.P. 120 for a confirmatory order authorizing the sale, and sent notices to each of the plot owners. At the Rule 120 hearing, Meridian and several lot owners appeared in opposition to Princeville. In view of the proscription of Rule 120(c), they filed no pleadings. However, the court received an affidavit in lieu of testimony from an officer of Meridian, and also heard other testimony.
Based thereon the court made rather detailed findings of fact and conclusions of law and ruled that the proposed foreclosure was not one of isolated ownership; rather it was multi-partied and very complicated. Jurisdiction was retained on a holding that the court would be required to adjudicate the rights of each property owner.
In short the trial court found that Rule 120 is broad enough in language and scope to invoke the jurisdiction of a court in equity when that is necessary to align and protect the rights of the respective parties before it. Petitioner, on the other hand, insists that the district court under Rule 120 can only hear and determine whether a party is in the military service.
I.
C.R.C.P. 120 reads in pertinent part:
We are well aware that the original purpose of Rule 120 was to establish the status of the debtor with respect to military service. The rule therefore was made a part of our civil procedure to comply with the then recently enacted Federal Soldiers' and Sailors' Civil Relief Act of 1940, now 50 U.S.C. App. § 501 et seq. See Hastings v. Security Thrift & Mortgage Co., 145 Colo. 36, 357 P.2d 919 (1960); Whitaker v. Hearnsberger, 123 Colo. 545, 233...
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