Swan v. Zwahlen
| Decision Date | 21 February 1955 |
| Docket Number | No. 17513,17513 |
| Citation | 131 Colo. 184,280 P.2d 439 |
| Parties | Mrs. D. Walter SWAN, Plaintiff in Error, v. Frances ZWAHLEN, Defendant in Error. |
| Court | Colorado Supreme Court |
Paul C. Brown, Denver, for plaintiff in error.
Peter J. Little, Denver, for defendant in error.
Mrs. D. Harold Swan by her complaint sought judgment against Frances Zwahlen for damages allegedly resulting from an automobile collision. Defendant filed an answer in which she denied negligence on her part and a counterclaim in which she sought damages. Ultimately the case was tried to the court without the intervention of a jury, resulting in a judgment in favor of defendant on plaintiff's complaint and in favor of plaintiff on defendant's counterclaim. Plaintiff brings the case to our court by writ of error seeking a reversal of the judgment.
It is disclosed by the record that after the cause was at issue, plaintiff, on January 25, 1954, served on defendant a 'Request for Admissions' and thereafter, and on February 4, 1954, there was filed in the district court an answer thereto, duly subscribed and sworn to by defendant. Subsequently, and on March 10, 1954, plaintiff filed her 'Motion For Orders That Facts Be Taken as Established and For Summary Judgment,' basing the same upon the statement that 'Said purported Answer to Request for Admissions served upon plaintiff was not a sworn statement as required by Rule 36 of the Colorado Rules of Civil Procedure.' Plaintiff filed an 'Affidavit' on April 22, 1954, in support of the motion for summary judgment, attaching thereto a photostatic copy of defendant's answer to 'Request for Admissions,' which said answer bore defendant's name, and immediately thereafter appears the following:
The trial court, at a hearing on April 27, 1954, granted plaintiff's motion for summary judgment, dismissed defendant's counterclaim, and pertinent judgments were duly entered. Thereafter, and on May 14, 1954, the trial court entered an order setting aside the summary judgment, and stated, inter alia: 'This order is made on the court's own motion without any suggestion or request from any one, and solely because the court believes that the drastic action of the court in granting the motion [for summary judgment] was not justified or warranted by the facts and circumstances, and is not the kind of action intended by the rules.' Thereafter and on May 24, 1954, it amended its order of May 14, 1954, by striking therefrom certain parts thereof, and by order, nunc pro tunc, as of April 27, 1954, denied plaintiff's motion for summary judgment.
Trial was had, as we have said, before a judge--the parties having waived a jury--resulting in a judgment being entered in favor of defendant on plaintiff's complaint and in favor of plaintiff on defendant's counterclaim.
Plaintiff's attorney in his brief states that the issue before this court is, 'Did the Trial Court err in vacating its orders and judgment originally entered in favor of plaintiff and in overruling plaintiff's Motion for Orders that Facts be Taken as Established and For Summary Judgment?' In support of his position he relies solely upon the provisions of Rule 36, R.C.P.Colo., the pertinent part of which is as follows: 'Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than 10 days after service thereof or within such shorter or longer time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he...
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...Rules shall be liberally construed to secure the just, speedy, and inexpensive determination of every action); Swan v. Zwahlen, 131 Colo. 184, 188, 280 P.2d 439, 441 (Colo. 1955) ("The rules indicate clearly a general policy to disregard narrow technicalities and to bring about the final de......
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City of Aurora v. Colorado State Engineer
...Rules shall be liberally construed to secure the just, speedy, and inexpensive determination of every action); Swan v. Zwahlen, 131 Colo. 184, 188, 280 P.2d 439, 441 (Colo.1955) ("The rules indicate clearly a general policy to disregard narrow technicalities and to bring about the final det......
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In the Matter of Steven James Foster.
...judgment will not serve as a basis for reversal unless it affects the substantial rights of the moving party. Swan v. Zwahlen, 131 Colo. 184, 187, 280 P.2d 439, 441 (1955). The OARC's response to Foster's motion contained a copy of the OARC's investigative report, which included more than s......
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Stockdale v. Ellsworth
...and to bring about the final determination of justiciable controversies without undue delay." Id. (quoting Swan v. Zwahlen, 131 Colo. 184, 280 P.2d 439, 441 (1955) ). Thus, we held, joinder of Aurora was not an abuse of discretion, even though the court had already entered judgment on the m......