Wheeler Kelly Hagny Trust Co. v. Williamson, 15455.

• Decision Date: 22 November 1943
• Docket Number: 15455.
• Parties: WHEELER KELLY HAGNY TRUST CO. et al. v. WILLIAMSON et al. (CORNELL & CO., Intervenor).
• Court: Colorado Supreme Court

143 P.2d 685

111 Colo. 515

WHEELER KELLY HAGNY TRUST CO. et al. v. WILLIAMSON et al. (CORNELL & CO., Intervenor).

No. 15455.

Supreme Court of Colorado, En Banc.

November 22, 1943

Petition from District Court, Boulder County; Frederic W. Clark Judge.

Action by the Wheeler Kelly Hagny Trust Company, executor of the estate of Mrs. E. C. Colvin, deceased, and others, against Harry M. Williamson and others, wherein Cornell & Co. intervened. On petition for an order of waiver of Rules of Civil Procedure, rule 111(b) that no writ of error shall be issued after 12 months from the entry of judgment, etc.

Petition denied.

HILLIARD Justice.

Proceeding in an action entitled Wheeler Kelly Hagny Trust Company, a corporation et al. v. Harry M. Williamson et al., in the Boulder county district court, an attorney of the Colorado bar, of counsel for plaintiffs therein, has petitioned here for an order of waiver of rule 111, Rules of Civil Procedure, Colo., which provides, inter alia: '(b) No writ of error shall be issued after 12 months from the entry of the judgment,' etc. In behalf of prevailing defendants in the action, their counsel have interposed objections.

It appears that final judgment against the plaintiffs was entered May 14, 1942; that a member of the Kansas bar, an experienced attorney of many years' practice, was chief counsel for the plaintiffs in the action, and appeared and conducted the proceedings throughout to finality; that in behalf of his clients, and preparatory to seeking review on error, he ordered and paid for the record requisite to that end, which, completed and in form, was sent to him in November, 1942; that not until October 12, 1943, when in manner already indicated, was the matter called to our attention.

It further appears that about July 8, 1942, the Colorado attorney became connected with the military establishment of the Republic, and only on occasion thereafter was he privileged or able to give other than incidental attention to legal matters; 'that during all of said time,' as he stated in his petition, 'this petitioner assumed that' Kansas counsel 'was attending to the proceedings necessary to be taken to get said case Before the Supreme Court of Colorado, and relied upon him to do so. That the said' Kansas attorney 'is unfamiliar with Colorado practice, and has failed to docket said case in this court within the time provided by rule, which time expired on May 14, 1943.' The petitioning Colorado attorney further stated that the 'record was sent' to the Kansas attorney at his address in 'Kansas, for his preparation of an abstract, and the brief and argument of the plaintiffs in error, which your petitioner is now [October, 1943] advised is almost completed and ready for the printer; but the preparation of which has been delayed due to the shortage...