694 P.2d 843 | Colo. | 1985
Lead Opinion
We issued a rule to show cause why the respondent district court should not be prohibited from entering an order authorizing the issuance of a writ of restitution. We now make the rule absolute.
I.
From the abbreviated record available to us, the petition for prohibition, and the response to the petition, we glean the following facts which provide the background and basis for this opinion.
The petitioners purchased a home in the 1970’s. In 1980 they were unable to meet their mortgage payments and respondent, Westmor Investment Corporation (West-mor), offered them a Homeowner’s Assistance Program. Petitioners claim that as a result of their accepting this program, Westmor ended up with title to their home, their monthly “rental” payment to West-mor was twice the amount of their preexisting mortgage payments, and they could repurchase their home only if they reas-sumed the preexisting mortgage payments and paid a substantial sum of money to Westmor.
On August 4, 1982, Westmor filed an unlawful detainer action in the Denver County Court alleging that: it was the' owner of the subject property; it had elected to terminate the petitioners’ month-to-month tenancy on July 31, 1982; petitioners had failed to leave the premises, and such failure constituted an unlawful detention. On August 23, 1982, the day of the trial of the unlawful detainer action in the county court, the petitioners filed a complaint in the Denver District Court challenging the validity of their agreement with Westmor. In November of 1983, the unlawful detainer proceeding in the county court was terminated. Subsequently, Westmor answered the complaint and filed a counterclaim for possession of the premises.
On September 3, 1982, Westmor filed a motion in the district court to set bond pursuant to section 13-40-114, 6 C.R.S. (1973) (Forcible Entry and Detainer).
At a hearing on Westmor’s motion on September 23, 1982, no evidence was introduced. Westmor requested that the rental payment of $414 per month be continued until trial and that a writ of restitution enter on the premises if the payments were not made. Petitioners’ counsel advised the court that there was a dispute as to whether the payments were rent or payments on the loan and stated: “What our concern is Mr. Allen [counsel for Westmor] is trying to condition the payment on some kind of issuance of a writ of restitution for which for all practical purposes — .” The trial court responded, “No. I am not going to do that. If the case will have to be tried, it will have to wait the outcome of the trial, obviously.” The trial court then stated, “So really, it is a stipulation that the plaintiffs will continue to make the monthly payments of $414 per month ... directly to the Defendants.... ”
Over a year later, in November 1983, Westmor filed a motion for entry of a writ of restitution pursuant to section 13-40-115, 6 C.R.S. (1973).
“ORD: MOTN FOR WRIT OF RESTITUTION— GRNTD, WORD TO FOLLOW”
Two days later, without a written order by the respondent court, the Clerk of the District Court signed a Writ of Restitution which had been submitted by Westmor. The writ referred to an order of possession obtained by Westmor and commanded the sheriff to dispossess the petitioners.
The petitioners immediately filed a Petition for Writ of Prohibition pursuant to C.A.R. 21. We issued a rule to show cause why the respondent trial court should not be prohibited from authorizing the issuance of a writ of restitution, and stayed all proceedings pending resolution of the issue.
II.
The petitioners contend that the respondent court did not have jurisdiction to order a writ of restitution because there was no forcible entry and detainer (FED) action pending in the district court. Westmor contends that the proceeding in the district court was simply a continuation of the FED action.
We agree with the petitioners that the action pending in the district court places in issue the entire transaction between them and Westmor. The complaint and counterclaim call for resolution of the basic question of who is the owner of the property and whether the transaction was fraudulent in character. The court’s resolution of this action will in the final analysis decide whether the petitioners are tenants subject to being evicted, or owners subject to foreclosure proceedings. Under these circumstances, the respondent court should have tried petitioners’ claims first and resolved Westmor’s claim to possession in the context of that suit. Reitze v. Humphreys, 53 Colo. 171, 125 P. 522 (1912).
The facts in Reitze
Reitze leads us to the conclusion that the petitioners’ suit in the district court is capable of resolving all the issues between the parties, giving effect to their rights and granting appropriate relief. Thus, it is unnecessary to determine whether or not there was an FED action pending in the district court. If there was not, a writ of restitution should not have issued. If there was, a writ of restitution should not have been issued until a decision on all the issues in controversy.
Rule made absolute.
. The parties did not provide this court with a copy of the complaint or answer and counterclaim. The petitioners state that Westmor "counterclaimed for possession of the petitioners’ home.” Westmor states it "alleged its unlawful detainer action as a counterclaim.”
. Section 13-40-114, 6 C.R.S. (1973), provides:
Delay in trial — undertaking. If either party requests a delay in trial longer than five days, the court in its discretion may upon good cause shown require either of the parties to give bond in an amount to be fixed by the court for the payment to the opposite party of such sum as he may be damaged due to the delay, the bond to be secured by two or more sureties approved by the clerk of the court or one corporate surety authorized to do business in this state.
. Neither the county court nor the district court has any record concerning a "transfer” of this case. The county court record shows that the case was dismissed in November 1983.
. Section 13-40-115, 6 C.R.S. (1973), provides:
Judgment — writ of restitution. (1) Upon the trial of any action under this article if service was had only by posting in accordance with section 13-40-112(2), and if the court finds the defendant has committed an unlawful detainer, the court shall enter judgment for the plaintiff to have restitution of the premises and shall issue a writ of restitution. The court may also continue the case for further hearing from time to time and may issue alias and pluries summons until personal service upon the defendant is had.
(2) Upon such trial or further hearing under this article after personal service is had upon the defendant in accordance with section 13-40-112(1), if the court or jury has not already tried the issue of unlawful detainer, it may do so, and if it finds the defendant has committed an unlawful detainer, the court shall enter judgment for the plaintiff to have restitution of the premises and shall issue a writ of restitution. In addition to such judgment for restitution, the court or jury shall further find the amount of rent, if any, due to the plaintiff from the defendant at the time of trial, the amount of damages, if any, sustained by the plaintiff to the time of the trial on account of the unlawful detention of the property by the defendant, and damages sustained by the plaintiff to the time of trial on account of injuries to the property, and judgment shall enter for such amounts, together with reasonable attorney’s fees and costs, upon which judgment execution shall issue as in other civil actions. Nothing in this section shall be construed to permit the entry of judgment in excess of the jurisdictional limit of the court.
. The English translation of these words is, "Order: Motion for Writ of Restitution — Granted, Written Order to Follow.”
. Our discussion of Reitze is based upon two consolidated cases, announced in separate opinions. Reitze v. Humphreys, 53 Colo. 177, 125 P. 518 (1912); Reitze v. Humphreys, 53 Colo. 171, 125 P. 522 (1912).
Concurrence Opinion
specially concurring:
I agree with the court’s opinion that the respondent judge had no basis upon which to issue a writ of restitution because no determination had been made as to the legal relationship between the parties and which of them was entitled to possession of the premises. I write separately only to express my view that it would be a serious misreading of the opinion to conclude that the court has made any decision concerning the applicability of the bond provision, section 13-40-114, 6 C.R.S. (1973), to the