Zahn v. District Court In and For Weld County

Decision Date22 July 1969
Docket NumberNo. 24187,24187
Citation457 P.2d 387,169 Colo. 405
PartiesJohn H. ZAHN and Rose Marie Zahn, Petitioners, v. The DISTRICT COURT IN AND FOR the COUNTY OF WELD, in the Nineteenth Judicial District, State of Colorado, and the Hororable Hugh H. Arnold, one of the Judges thereof, and Alvin A. Starck and Lawrence W. Starck, d/b/a Starck Bros. Construction Co., Respondents.
CourtColorado Supreme Court

William L. West, Greeley, for petitioners.

John Perrott, Berthoud, for respondents.

LEE, Justice.

This proceeding is brought pursuant to R.C.P.Colo. 116 by which petitioners seek relief in the nature of mandamus against respondents.

Petitioners, John H. Zahn and Rose Marie Zahn, were plaintiffs in the trial court and by their complaint against defendants, Alvin A. Starck and Lawrence A. Starck, doing business as Starck Bros. Construction Co., sought damages for breach of a construction contract.

Plaintiffs' complaint against defendants is based upon the alleged unskillful and negligent construction of a house by defendants for plaintiffs, contrary to the plans and specifications and in violation of applicable laws, regulations and building codes. The complaint specifies 64 separate deficiencies in the construction, which will require the expenditure of $10,500 to correct, for which sum plaintiffs pray damages from defendants.

Defendants filed their motion to dismiss or, in the alternative, to stay all proceedings in the trial court, upon the grounds that plaintiffs had refused to comply with an arbitration clause contained in the written construction contract between the parties, although defendants were ready, willing and able to arbitrate any and all disputes arising under the contract. The arbitration clause provided as follows:

'All cases of dispute shall be submitted to a board of arbitration consisting of three, one named by each party and the third by the first two. The decision of any two shall be binding upon all parties to the dispute.'

The trial court denied the motion to dismiss. However, the court granted the motion to stay proceedings in the trial court until an arbitration was had in accordance with the terms of the arbitration clause in the agreement.

Petitioners seek relief here to compel the trial court to vacate its order staying the trial proceedings, and to require the defendants to answer or otherwise plead to the merits of plaintiffs' complaint and to proceed to trial of the case on its merits. In response to this...

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13 cases
  • Anne Arundel County v. Fraternal Order of Anne Arundel Detention Officers and Personnel
    • United States
    • Maryland Court of Appeals
    • 1 September 1986
    ...of Ambridge Water Authority v. Columbia, 458 Pa. 546, 548-549, 328 A.2d 498, 500 (1974). See also Zahn v. District Court in and for County of Weld, 169 Colo. 405, 457 P.2d 387 (1969); Interstate Bakeries Corp. v. Bakery, Etc., Drivers U., 31 Ill.2d 317, 201 N.E.2d 452 (1964); Joseph L. Wilm......
  • Johnson v. Fireman's Fund Ins. Co.
    • United States
    • Iowa Supreme Court
    • 20 December 1978
    ...law was Colorado, in Ezell v. Rocky Mountain Bean & Elevator Co., 76 Colo. 409, 232 P. 680, followed in Zahn v. District Court in and for County of Weld, 169 Colo. 405, 457 P.2d 387, and Dominion Ins. Co. v. Hart, 178 Colo. 451, 454, 498 P.2d 1138, 1140 ("arbitration is favored in Colorado"......
  • Cordillera Corp. v. Heard
    • United States
    • Colorado Supreme Court
    • 9 June 1980
    ...until the dispute has been submitted to arbitration. See Guthrie v. Barda, 188 Colo. 124, 533 P.2d 487 (1975); Zahn v. District Court, 169 Colo. 405, 457 P.2d 387 (1969). Here, however, the issue is whether, as contended by defendant, the arbitration clause has been waived. See Thomas Wells......
  • Cordillera Corp. v. Heard
    • United States
    • Colorado Court of Appeals
    • 30 November 1978
    ...until the dispute has been submitted to arbitration. See Guthrie v. Barda, 188 Colo. 124, 533 P.2d 487 (1975); Zahn v. District Court,169 Colo. 405, 457 P.2d 387 (1969). Here, however, the issue is whether, as contended by defendant, the arbitration clause has been waived. See Thomas Wells ......
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