Reserve Life Ins. Co., Dallas, Tex., v. Frankfather

• Decision Date: 27 November 1950
• Docket Number: No. 16583,16583
• Parties: , 39 A.L.R.2d 146 RESERVE LIFE INS. CO., DALLAS, TEX., v. FRANKFATHER.
• Court: Colorado Supreme Court

Page 1035

225 P.2d 1035

123 Colo. 77, 39 A.L.R.2d 146

RESERVE LIFE INS. CO., DALLAS, TEX., v. FRANKFATHER.

No. 16583.

Supreme Court of Colorado, en Banc.

Nov. 27, 1950.

Wolvington & Wormwood, Forrest C. O'Dell, Denver, for plaintiff in error.

Creamer & Creamer, Charles Ginsberg, Denver, for defendant in error.

ALTER, Justice.

Clay B. Frankfather brought an action against Reserve Life Insurance Company, Dallas, Texas, a corporation, and recovered Judgment. The insurance company sought a review here by writ of error.

Subsequent to docketing the case here on error, counsel for Frankfather filed a motion to dismiss the writ of error upon the alleged ground that the action was moot, and in support of the motion alleged the following uncontroverted facts:

On November 30, 1949, judgment was entered in favor of Frankfather and against the insurance company, at which time a stay of execution was granted for a period of thirty days, and sixty days were allowed to prepare and tender a reporter's transcript; December 27, 1949, the insurance company's motion for a further stay of execution for thirty days, and an additional thirty days for tendering the reporter's transcript was granted; February 16, 1950, the reporter's transcript was lodged, and no further stay of execution having been requested or granted, on April 10, 1950, execution was issued, and garnishee summons served upon a bank in which the insurance company had moneys on deposit; April 12, 1950, the insurance company moved for stay of execution nunc pro tunc, which motion was denied; April 13, 1950, the insurance company paid the judgment together with interest and costs, and on the same day Frankfather's attorneys satisfied the judgment in full. Accordingly it is contended by Frankfather's counsel that, 'there are now and presently no issues extant and in existence between plaintiff in error and defendant in error, and all questions sought to be raised by the Writ of Error herein are mooted.'

The only question presented by the motion is whether the factual situation here presented deprives the judgment debtor of his right to have the judgment of the trial court reviewed by writ of error here, and the answer depends solely upon whether, in consideration of the factual situation presented, the questions are, as Frankfather contends, moot.

In Bray v. Trower, 87 Colo. 240, 286 P. 275, 278 we said, 'The following is a general definition of a moot case, sufficient for all purposes here: 'Any attempt, by a mere colorable dispute, to obtain the opinion of a court upon a question of law, when there is no real controversy. * * *' Bouvier's Law Dictionary (Rawles 3d Rev.), p. 2245. There has been no such attempt on the part of defendant Bray. Plaintiff cannot tie up defendant with a permanent writ of injunction, and then declare the case to be moot, because the party enjoined does not defy the order of court. Defendant could not do otherwise than obey the order, and he is entitled to a review in this court, to determine whether or not the injunction was improvidently issued.'

There is no moot case or moot question where there are substantial rights or issues controverted in the case, and it is the duty of this court to review on writ of error any judgment of a trial court where substantial rights or issues are involved, provided the defeated party seeks timely relief thereby. If, however, there is nothing to be determined except in abstract question which is divorced from existing facts or rights or rests upon a pretended controversy, when in fact there is really none, or where a judgment which, when rendered, cannot have any effect upon an existing controversy, then the question is moot; otherwise the question does not become moot, and this court is under a duty to determine issues when properly presented.

Frankfather, in support of his motion to dismiss, directs our attention to the following decisions in this jurisdiction: Atkinson v. Tabor, 7 Colo. 195, 3 P. 64; Floyd v. Cochran, 24 Colo. 489, 52 P. 676; Knowles v. Harrington, 45 Colo. 346, 101 P. 403; Denver v. Brown, 47 Colo. 513, 108 P. 971; Hawthorne v. Hendrie & Bolthoff Mfg. & Sup. Co., 50 Colo. 342, 116 P. 122; Bull v. Doss Brothers Electric Const. Co., 51 Colo. 459, 119 P. 156; Nichols v. Katres, 57 Colo. 471, 140 P. 792; True v. True, 69 Colo. 502, 194 P. 1063; Walker v. Walker, 85 Colo. 473, 276 P. 981; Lehrman Merc. Co. v. Ireland, 93 Colo. 209, 24 P.2d 750; Coe v. Waters, 16 Colo.App. 311, 64 P. 1054; People v. Cannon, 26 Colo.App. 500, 145 P. 711.

We have studied all of these decisions, and in some of them the records and briefs in connection therewith. A detailed analysis of each would unduly prolong this opinion; however we shall discuss each case briefly.

In Atkinson v. Tabor is the statement: 'We entertain no doubt of the general proposition that it is inconsistent with the principles of justice, and the rules of law, to permit a party who has voluntarily taken advantage of a judgment rendered at nisi prius, to afterwards prosecute proceedings to reverse it. [7 Colo. 195, 3 P. 65.]' (Italics ours.) That decision would preclude Frankfather, but has no application to the insurance company in the present case.

In Floyd v. Cochran it was held that the matters in controversy had been definitely and finally settled in another action and that there were no questions left to be determined; consequently the writ of error was dismissed. In connection therewith we quoted with approval the following from Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 133, 40 L.Ed. 293, 'The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'

Knowles v. Harrington was dismissed on the court's own motion when, upon oral argument, it was disclosed that the judgment against plaintiff in error had been satisfied in full. Our court there held that there was no judgment before it for review and stated: 'Courts are organized for the purpose of determining live questions between parties, who are interested or affected by such determination.' (Italics ours.) In support of that position Hunter v. Dickinson, 3 Colo.App. 372, 33 P. 932, 933, was cited, wherein it is said: 'It is not permitted to litigants to commence actions, take appeals, settle their controversies, and then call upon the court to declare general principles, * * *, and determine rights which can only be of value to perhaps other pending or future litigations.' (Italics ours.)

In Knowles v. Harrington there is nothing to indicate that the settlement of the controversy involved was other than purely voluntary.

In Denver v. Brown plaintiff in error was ordered to furnish irrigation water for the season of 1905 at the rate of $1.25 per inch, and there was a full compliance with the order of court by Denver. The parties had stipulated that there should be deposited with the court the sum of $2 per inch for the irrigation water in 1905 with the understanding that $1.25 might be withdrawn by the city, the remaining 75 cents to await the determination of the cause by the courts. If the judgment of the trial court was affirmed, the remaining 75 cents should be refunded to those who made the deposit. The city complied with the court's order in furnishing irrigation water in 1905, and the opinion of the court was announced in January, 1910. The writ of error was dismissed because, it was held, the subject matter of the controversy had ceased to exist, the court stating: 'The existence of an actual controversy is an essential requisite to appellate jurisdiction, and it is not within the province of an appellate court to decide abstract or hypothetical questions disconnected from the granting of actual relief, or from the determination of which no practical result can follow. [Citing cases.]'

In Hawthorne v. Hendrie & Bolthoff Mfg. & Sup. Co. a judgment debtor became benkrupt, and Hawthorne was appointed its trustee. The judgment of the Hendrie & Bolthoff Co. was filed and allowed as a claim against the bankrupt estate, and Hawthorne ordered to pay the same, with which order he complied, making two payments. Upon delivery of the final payment, Hawthorne demanded a receipt, which recited, 'In payment of the balance due on account of our [Hendrie's] mechanic's lien claim filed and allowed, * * * it being understood that in event this payment is found, on final distribution of the mill fund now on hand, to be excessive, or otherwise improper for any reason, then the same or such part thereof as may be required by the referee will be returned to the trustee.' [50 Colo. 342, 116 P. 123.] The trustee filed his report showing the payment of the Hendrie & Bolthoff claim in full, and the report was approved. Hawthorne sought a review of the Hendrie & Bolthoff judgment against the bankrupt mining company. On motion to dismiss the writ of error, we held that the payment was voluntary and not under duress, and, therefore, the writ was dismissed.

In Bull v. Doss Brothers Electric Const. Co. it was alleged in the motion granted by the court that the judgment had been voluntarily paid and satisfied. It was there contended that the payment of the judgment was under duress and compulsion. This court determined otherwise and held that under the factual situation presented there was no duress impliedly finding that if the factual situation presented either duress or compulsion the writ would not have been dismissed.

In Nichols v. Katres the successful plaintiff filed a complete release and satisfaction of the judgment upon payment to him of a lesser sum in compromise, and stipulated that the judgment in his favor should be fully satisfied and the lien thereof released. There was no question as to the legality of the...