Schoenewald v. Schoen, 17687
| Decision Date | 18 July 1955 |
| Docket Number | No. 17687,17687 |
| Citation | 132 Colo. 142,286 P.2d 341 |
| Parties | Mayme SCHOENEWALD, Plaintiff in Error, v. Louis SCHOEN, Leonard Anderson, Floyd E. Wasinger, N. H. Nelson, Defendants in Error. |
| Court | Colorado Supreme Court |
Hyman Berman, Denver, for plaintiff in error.
McComb, Zarlengo & Mott, Denver, for defendant in error, Leonard Anderson.
Before ALTER, C. J., and MOORE, HOLLAND, CLARK, LINDSLEY, BRADFIELD and KNAUSS, JJ.
One Louis Schoen filed his complaint in the district court of the City and County of Denver seeking to obtain a judgment for damages for personal injuries allegedly sustained by him in a fall through a concealed opening in the floor of a closet located on premises leased by him from defendant Mayme Schoenewald. Defendant Schoenewald moved to make Anderson, Wasinger and Nelson third-party defendants, and leave was granted her to serve upon said parties summons and complaint in third-party proceedings.
The original defendant, Mayme Schoenewald, alleged in said third-party complaint, that Anderson, Wasinger and Nelson were responsible for the dangerous condition of the real estate leased by Louis Schoen, which caused the injuries to him, and that, as between the original defendant and the third-party defendants, 'defendant is entitled to indemnity and recovery over from the third-party defendants and each of them in such sum as is adjudicated in favor of plaintiff against defendant * * *.' Thereafter each of the third-party defendants filed a motion to dismiss the third-party complaint, and upon consideration of said motions the trial court entered an order dismissing the third-party complaint as to each of the defendants named therein, 'without prejudice to the right of the third-party plaintiff to bring a new action in this behalf * * *.' Mayme Schoenewald caused writ of error to be issued directed to this order of dismissal, and third-party defendant Anderson moved for dismissal of the writ on the grounds that no final judgment has been entered in the trial court which can be reviewed by writ of error.
Where a trial court enters an order dismissing a third-party complaint without prejudice to the bringing of a separate action for the determination of issues tendered be said complaint, has any 'final judgment' been entered to which writ of error may be directed?
The question is answered in the negative. In Burks v. Maudlin, 109 Colo. 281, 124 P.2d 601, our Court held that an...
To continue reading
Request your trial
-
DIA Brewing Co. v. MCE-DIA, LLC
...constitutes a final judgment only if the action "cannot be saved" by an amended complaint. See, e.g. , Schoenewald v. Schoen , 132 Colo. 142, 143-44, 286 P.2d 341, 341 (1955) (dismissal without prejudice was not a final judgment); Avicanna Inc. v. Mewhinney , 2019 COA 129, ¶ 1 n.1, ––– P.3d......
-
Levine v. Empire Sav. and Loan Ass'n
...Transport, Inc. v. District Court, 140 Colo. 190, 343 P.2d 535; dismissing a third-party complaint without prejudice, Schoenwald v. Schoen, 132 Colo. 142, 286 P.2d 341; and, dismissing plaintiffs' claims against some (but not all) of the defendants, Berry v. Westknit Originals, Inc., 145 Co......
-
Schaden v. DIA Brewing Co.
...designate a judgment as with or without prejudice is, to be sure, relevant to the determination of finality. See Schoenewald v. Schoen , 132 Colo. 142, 286 P.2d 341, 341 (1955) (concluding that an order dismissing a complaint "without prejudice to the bringing of a separate action for the d......
-
Carter v. Small Business Administration, 76-903
...contention. Generally, a judgment dismissing only a complaint without prejudice is not final and appealable, e. g., Schoenwald v. Schoen, 132 Colo. 142, 286 P.2d 341, unless specific circumstances exist, i. e., the action cannot be saved by any amendment to the complaint. See, e. g., Borell......
-
THE COLORADO APPELLATE RULES
...Morron v. McDaniel, 127 Colo. 180, 254 P.2d 862 (1953); Vandy's, Inc. v. Nelson, 130 Colo. 51, 273 P.2d 633 (1954); Schoenwald v. Schoen, 132 Colo. 142, 286 P.2d 341 (1955); Cutting v. DeAndrea, 135 Colo. 501, 313 P.2d 315 (1957); Groendyke Transp., Inc. v. District Court, 140 Colo. 190, 34......
-
Rule 1 SCOPE OF RULES.
...Morron v. McDaniel, 127 Colo. 180, 254 P.2d 862 (1953); Vandy's, Inc. v. Nelson, 130 Colo. 51, 273 P.2d 633 (1954); Schoenwald v. Schoen, 132 Colo. 142, 286 P.2d 341 (1955); Cutting v. DeAndrea, 135 Colo. 501, 313 P.2d 315 (1957); Groendyke Transp., Inc. v. District Court, 140 Colo. 190, 34......
-
How to Lose an Appeal Without Really Trying
...& Casualty Co., 146 Colo. 157, 360 P.2d 807. 4. See Hoen v. District Court, 159 Colo. 451, 412 P.2d 428. 5. See Schoenwald v. Schoen, 132 Colo. 142, 286 P.2d 341. 6. See Berry v. Westknit Originals, Inc., 145 Colo. 48, 357 P.2d 652. 7. See Carr v. Rocchio, 528 P.2d 974 (Colo. App.) (not sel......
-
Chapter 5 - § 5.1 • REQUIREMENT OF FINALITY
...before the trial court, was an appealable final judgment); • An order dismissing a complaint without prejudice, Schoenwald v. Schoen, 286 P.2d 341, 342 (Colo. 1955); cf. FSDW, LLC v. First Nat'l Bank, 94 P.3d 1260, 1262-64 (Colo. App. 2004) (order denying the defendant's terms and condition......