Smith, for and on Behalf of Leech v. Mills

• Decision Date: 06 November 1950
• Docket Number: No. 16494,16494
• Citation: 225 P.2d 483,123 Colo. 11
• Parties: SMITH, for and on Behalf of LEECH et al. v. MILLS.
• Court: Colorado Supreme Court

Page 483

225 P.2d 483

123 Colo. 11

SMITH, for and on Behalf of LEECH et al. v. MILLS.

No. 16494.

Supreme Court of Colorado, en Banc.

Nov. 6, 1950.

W. F. Robinson, Jr., Fred W. Mattson, Denver, for plaintiff in error.

Charles A. Karowsky, Greeley, for defendant in error.

STONE, Justice.

Action was brought below by Florence Leech Smith, as the mother and next friend of her two minor daughters, against their paternal aunt, Esther Leech Mills, alleging in brief that plaintiff and defendant had entered into a written agreement for the payment by defendant to plaintiff of the proceeds derived from a certain policy of life insurance on the life of one Clara J. Leech; that the agreement was for the benefit of said minor children; that defendant had failed and refused to comply with the provisions of the agreement and had received proceeds from said insurance policy. A copy of the agreement was attached to the complaint as an exhibit. So far as pertinent here, the agreement between said parties provided that, 'In consideration of the mutual covenants herein contained and the mutual love and affection each party has for the other party hereto and the love and affection the first bears to and has for Jo Ann Leech and Sharon Leech, nieces of the party of the first part, it is mutually agreed as follows: 1. That the party of the first part will pay or cause to be paid to the party of the second part for the use and benefit of Jo Ann Leech and Sharon Leech, nieces of the party of the second part, any and all proceeds derived by the party of the first part from Policy No. 4,926,718 issued by the Mutual Life Insurance Company.'

Defendant attacked the complaint by motion for summary judgment, on the ground that a cause of action had not been stated, and that plaintiff had no basis for relief. This motion was denied by the court with an invitation for its renewal in the court order by which it gave the defendant ten days in which to answer, 'then if advisable to submit argument by brief or affidavit as to the issue involved.' Thereafter defendant filed answer setting up lack of consideration and that the agreement was signed by defendant under duress, and then renewed her motion for summary judgment, on the ground that the pleadings showed that a cause of action had not been stated and that plaintiff had no basis for relief. The court upon hearing granted the motion and ordered that plaintiff might have ten days in which to file an amended complaint. Thereafter plaintiff filed an amended complaint setting up alleged consideration for the agreement upon which the suit was brought, and subsequently, on motion of defendant, the court dismissed this amended complaint upon the ground that it had erred in permitting it to be filed, and affirmed the summary judgment. The question before us is the propriety of the action of the court in so ordering summary judgment with denial of right to amend.

Under our present rules of civil procedure plaintiff is not required to set out 'a cause of action' as contemplated by our former code, but by Rule 8C(a) need set forth only 'a short and plain statement of the claim showing that the pleader is entitled to relief'. The purpose of the rule is not to require the pleader to set forth the facts with particularity, but merely to apprize the adverse party of the nature of his claim. Bridges v. Ingram, Colo., 223 P.2d 1051. As said of the federal rule from which ours was adopted, 'The courts have recognized that the function of pleadings under the Federal Rules is to give fair notice of...