Smith v. Bridges, s. 75-569 and 75-570
| Decision Date | 27 October 1977 |
| Docket Number | Nos. 75-569 and 75-570,s. 75-569 and 75-570 |
| Citation | 40 Colo.App. 171,574 P.2d 511 |
| Parties | Paul K. SMITH and Lahoma Smith, Plaintiffs-Appellants, v. Hollis R. BRIDGES and Marshall Bridges, Defendants-Appellees. In re the Matter of the ESTATE of Hollis R. BRIDGES, Deceased. . II |
| Court | Colorado Court of Appeals |
William Pehr, Perry W. Fox, Westminster, for plaintiffs-appellants.
Yegge, Hall & Evans, Eugene O. Daniels, Denver, for defendants-appellees.
Paul and Lahoma Smith sued Hollis and Marshall Bridges for damages arising out of an automobile collision. Hollis Bridges died prior to trial and his attorney filed a "suggestion of death." On the 90th day after the filing of the suggestion of death, the Smiths moved, pursuant to C.R.C.P. 25, to substitute their attorney's secretary as personal representative in both the estate proceedings and in the pending tort action. The same judge presided in the probate matter as well as the tort action. The court denied the motion in both proceedings because it considered the person designated by the Smiths to be improper.
On the 91st day after the filing of the suggestion of death, the Smiths submitted an amended motion for substitution urging appointment of plaintiffs, or "whoever the court appointed as administrator and/or special administrator," to serve as personal representative. Counsel for the Bridges then moved to dismiss the tort action alleging that the plaintiffs had failed to comply with the time limit for substitution mandated by C.R.C.P. 25. The court thereupon dismissed the Smiths' tort case. Accordingly, the determinative issue before us is whether the court erred in dismissing the tort case even though a motion for substitution was filed within 90 days of the service of the suggestion of death.
C.R.C.P. 25(a)(1) sets forth the mechanics for substitution of parties when a death occurs during the pendency of litigation. It makes provision for service of a "suggestion of death" to make known the fact of the death and to make apparent the need for substitution for the deceased party. The rule provides that after service of such suggestion of death, "(i)f the motion for substitution is not made within ninety days . . . the action shall be dismissed as to the deceased party." (emphasis added)
C.R.C.P. 1(a) directs that the rules "shall be liberally construed to secure the just, speedy and inexpensive determination of every action." Here, the motion for substitution was "made" within 90 days of service of the suggestion of death. Merely because the person designated for appointment as...
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