Rosenbaum v. Buchheit

• Decision Date: 02 April 1923
• Docket Number: 10343.
• Parties: ROSENBAUM v. BUCHHEIT.
• Court: Colorado Supreme Court

215 P. 131

73 Colo. 260

ROSENBAUM v. BUCHHEIT.

No. 10343.

Supreme Court of Colorado, En Banc.

April 2, 1923

Rehearing Denied May 7, 1923.

Error to District Court, Boulder County; Neil F. Graham, Judge.

Suit for specific performance by C. C. Rosenbaum against Frank J Buchhit, executor of the estate of Annie Rosenbaum, deceased. Judgment for defendant, and plaintiff brings error.

Affirmed.

O. A. Johnson, of Boulder, and Honan & Cook, of Denver, for plaintiff in error.

Goss Kimbrough & Hutchinson, of Boulder, for defendant in error.

BURKE J.

The parties occupy the same relative position here as in the trial court.

The was an action to enforce specific performance of an alleged oral contract whereby decedent agreed, in consideration of services thereafter to be performed by plaintiff, to will to the latter her entire estate. A jury was called and sworn over the objection of defendant, and, at the close of all the evidence, dismissed by the court. On motion of defendant judgment was thereupon entered for him. To review that judgment this writ is prosecuted. We quote from the brief of plaintiff in error:

'The paramount question is: Did the court err in sustaining defendant's motion, made at the close of the testimony on both sides, to take the case from the jury, and to give a judgment for the defendant on the grounds stated in the motion? Upon this court's answer to this question the respective rights of the parties hinge.'

We think that statement correct. Four of the forty-nine assignments are directed to it.

The cause was equitable in its nature. Plaintiff was not entitled to a jury. The grounds of the motion were 'that the pleadings do not state sufficient facts to constitute a cause of action, * * * that the proof does not show a cause of action independent of the pleadings.' In sustaining that motion the court clearly acted within its powers, and, irrespective of the sufficiency of the complaint, the record supports that action.

Plaintiff contends that if, 'admitting, as true, all the testimony introduced by plaintiff, he was entitled to recover, then this case must be reversed'; i. e., the court having called and sworn a jury in an equity case must submit to them all questions of fact therein, and a motion for judgment at the close of all the evidence is equivalent to a demurrer thereon. The contrary of these two propositions is the law. Selfridge v. Leonard-Heffner Co., 51...