*1 Fishman show facts undisputed Here (albeit his accident before injured eye could see after see could not and that he with aid of glasses) cov He glasses. with or without the accident either Commission ered statute and both the by the holding. court were correct in so is affirmed. judgment The Day Justice participating. 21,094.
No. et E. Sr., al., T. Miller, Arapahoe al. et County, and for District Court 763)
(388 [2d] P. February January Rehearing 1964. Decided denied *2 Mr. Fred M. Messrs. Winner, Hall & Shulen- Yegge, petitioners. burg, for Appel respondents.
Messrs. for Kothgerber, & Powers, En Banc. opinion delivered the of Court. the Justice Moore
This is an original proceeding mandamus in which the petition the was: prayer directing Respondent “That an order be issued the County Arapahoe, District Court and for the why show cause should it ordered and directed to and set aside its order vacate entered in Civil Action No. granted plaintiffs 17684, which order Strike Motion to Jury from the Calendar and Restore Calendar Trial the Court.” Upon petition consideration of the we directed that the showing-made rule to cause show should issue. From appears the instruments filed herein it re- spondents plaintiffs other than the district were petitioners the action above referred and to, the Millers, herein, defendants. were complaint plaintiffs allegations
The of contained promissory the effect defendants note, executed by mortgage deed; secured that default had been made security thereof; in the terms for indebted- inadequate ness and “that rents and financial bene- being mortgaged wasted.” fits from prayer land are as follows: by sale “WHEREFORE, Plaintiff demands foreclosure paragraph mortgaged property 2 to described in Twenty-Nine satisfy principal the debt One Hundred eight ($129,000.00) plus interest of Thousand Dollars (8%) percent per January date 25, 1961, annum from judgment, judgment against personal defendants attorneys appointment debt, Receiver, of a costs and proper.” deems such other relief as the Court fees herein) (petitioners denied answer The defendants alleged complaint; allegations fraud material mortgage; asserted, procurement note and separate In all, eleven defenses. addition thereto alleged damages for a counterclaim for defendants filed involving in which breach of the transaction contract prayer mortgage were executed. The note *3 counterclaim is follows: as them, and each of
“WHEREFORE, Defendants, these prayer in pray of the the Com- the amount a set off in against by way pray judgment plaint, the Plaintiff and against successor Securities Credit the to Counter-Claim plus in- Corporation, $500,000.00 costs, the amount of attorneys’ other and and for such further fees, and terest, just may proper.” and the Court deem as relief under Rule demanded a The defendants trial pretrial (b) con- 2, 1963, On December a 38 Colo. R.C.P. an be was order entered that the issues held, ference tried to days prior 5, 1963, a of twelve. On December eleven petitioners trial, date received the set for copy instrument entitled “Plaintiffs’ Motion a of an Jury Calendar and Restore to Strike from the Calen- promptly a Said Motion was dar as Trial to Court.” petitioners December in- 12, 1963, heard and on were respondent court formed that the had or- court jury, a the action tried court without com- dered mencing petition Thereupon December proceeding original instant filed. Colo, R.C.P. estab- (a)
Petitioners argue that them assert by jury. They lishes in to trial order them trial exceeds the jurisdic- denying tion of the District respondent Court, abuse involves court; discretion that the case on the said part issues and over exhibits and that many complicated have they no at law. adequate remedy alia, fore- Counsel for inter respondents argue, closure action fore- filing typical was commenced “a closure in- complaint.” They complaint assert such a vokes jurisdiction of the arm of the court equity the character determined, action is as thereby of which a trial notwithstand- by jury improper, result counterclaim issues ing that of the defendants raises which would matters for trial if set properly forth in action. separate petitioners
Counsel for rely exclusively upon pro- of Rule 38 (a) visions the source of their It trial. provides: “Upon demand, actions for the recovery specific real or with or personal property, damages, without or claimed as due for money contract, on or as damages breach contract, injuries or for person property, an issue fact must be tried to unless a jury, jury is thereafter waived.”
This rule, all material parts, without adopts change provisions Rule of the Code of Civil Procedure. This code had been on construed numerous occasions this prior to the adoption of Rule 38 (a). promulgation of the new rule, pertinent of which are in parts the exact *4 pre-existing code, included necessarily the construction given language theretofore of the code provisions. The new rule of civil did procedure not enlarge upon trial as those rights were fixed the code by judicial and the pronouncements thereunder. other No rule of civil procedure enlarges the category cases in which trial shall be had.
129 350, Bank, 53 Colo. In Neikirk Boulder v. The National applied following 127 Pac. find 137,we provisions Proce- applicable Code Civil to the dure: demanded a error
“Plaintiffs in
They alleged certain
below, which was denied.
they sought
action
damages
It
an
to recover. was
which
mortgage.
code,
Under our
the foreclosure of
de-
must be
an issue of fact
tried
whether
pends
upon
of the action in which the is-
the character
mortgage
equita-
joined.
foreclosure
sue is
proceeding,
joined are
tried
and the issues
ble
Coal
v.
Gude,
87;
v.
11 Colo.
Co.
Danielson
court.
Selfridge
Co.,
116;
v.
24 Colo.
Co.,
Coal
Leonard-Heffner
To are Court like effect lowing 283; 11 17 Pac. 87, Danielson Colo. Gude, cases: v. Selfridge v. 186, 326; 49 112 Pac. Lewis, Cree Colo. v. Plains 158; 51 117 Pac. Co., 314, Colo. Leonard-Heffner Iron Haggott, 696; 210 Pac. 228, 72 Co. v. Colo. Works Tiger 131; 215 260, Rosenbaum v. 73 Colo. Pac. Buchheit, (2d) 54 Fisher, Co. v. P. 221, Colo. petitioners our attention a state-
Counsel for direct opinion v. ment in Johnson contained of this court (2d) Neel, P. 377, 939, 123 Colo. as follows: basing question on “In the determination of this estoppel equitable grounds are we not unmindful opinion Tiger Fisher, Placers 98 Colo. our Co. recognized (2d) P. we rule original complaint in an fixes filed ‘the nature suit, arm of the court it should be and what tried/ party and whether entitled to a trial even either presented though cross defendant properly jury. That case, issues triable to and others pro- of civil cited, therein was determined under code cedure. Whether or the result would be the same un- pro- der the Rules of Civil which contains a Procedure *5 vision relating (Rule to compulsory counterclaims do 13[a]) we not determine.” It is above argued quoted the last sentence of the from justifies departure the rule adhered under This Procedure. provisions of the Code Civil Colo, calls for a with of Rule R.C.P. comparison (a) pertinent of the Civil Procedure Code of to determine whether there is material difference would justify an abandonment the rule announced Neikirk The v. Boulder National other Bank, supra, and cases cited. above (a) Colo., captioned R.C.P. “Compulsory
Counterclaims.” It “A that: state provides shall pleading as a counterclaim claim any of filing which at the time the pleading the pleader against has party, any opposing it if out arises transaction or occurrence matter subject claim does opposing party’s require adjudication its third presence parties of whom the court cannot acquire jurisdic- * * tion
The sections of the Civil Code of Procedure in effect cases hereinabove (other when the cited than Johnson decided, were are Neel) as follows: Section 62. answer “The defendant shall contain:
[*] [*] [*] “Second —A statement of new constituting matter any a defense, or counterclaim in lan- ordinary concise ** *” guage, without unnecessary repetition. —
Section 63. “Counterclaim —-What constitutes. counterclaim mentioned in section, the last shall be one in favor existing of the defendant against or plaintiff, and a plaintiff defendant, or between whom a judg- several ment might had in action, arising out of one of the following causes of action:
“First —A cause of action arising out of the transaction forth in set answer, the foundation claim or plaintiff’s defendant’s con- defense, or nected with the subject of action. any upon other arising contract, action “Second—In existing upon arising contract, and also
cause p. § 57; [L. ’87, 112, the action. commencement at the § 63.]” ’08, Code *6 be difference is material there no
In substance sub the code on the of rule and the the tween justify abandonment compulsory ject counterclaims, Na The Boulder Neikirk v. in rule announced jury supra, a with reference Bank, tional trial. discharged.
The rule is Mr. Justice in result. Hall concurs Pringle concur and Mr. Justice Justice Frantz Mr. part part. in and dissent in dissenting part concurring and Justice Frantz part: fact-finding concepts regarding func- Traditional jury legal claims of nature and of tion of a recognized equitable cognizance claims are court in Any by 38 maintained Rules and R.C.P. Colo. and construction of disserves these rules other plain meaning rather used in the rules. its interpreting Procedure Cases former Code of Civil precedent can be little value as construction of changes Rules 38 and Colo. Material were ef- R.C.P. by adoption present fected rules, as was (No. pointed 9) by out in an address a member of the chapter Revision Committee when stated: he “This changes good practice a our deal of former and should carefully analyzed before In trial.” address same pointed provision you he further out that “under this single jury demand a can trial on issue or on all issues.” (with exception perti- Under Rules 38 and 39 one present problem) only party having nent to , procedural to trial an issue issues to may right; power of act to lose that it is not within the adversary bring his about such a result. The words ways the rules make this manifest. The mention party which the issue loses this who to have a trial of is entitled
procedural right notion that excludes the right. adversary may compass his the loss of such many right? How he lose I this enumerate: jury, by 1. “An issue of fact be tried must unless (d). (a) trial is thereafter Rule waived.” may A demand for a trial certain issues con- relinquishment of such to other stitute issues. trial as (b) (c). may sitting 3. He “consent trial the court with- jury,” stipulation out a either written filed with the stipulation open court or oral made in court. Rule (a). only way adversary can a de- effect appear nial of his failure “to at the trial.” *7 (a). provides way Rule 39 That the rule one but that may adversary jury strongly suggests circumvent trial adversary way that the no other has to achieve it. “Any party may by jury any demand a trial issue jury. (b). by a . . .” Rule 38 triable “In his demand a specify party may which tried; issues he wishes so be otherwise he shall deemed to have demanded trial jury (c). plain for all issues so triable.” This is yet language; meaning beggared by is not its majority opinion? contained in the construction jury If demand for trial includes issues as to which a party jury deny entitled trial, not to a is court should not jury demand should limit it but to issues on which a trial properly sought. Damsky (2d) could 46. Zavatt, be v. 289 F. agree plaintiffs, being equitable I claim of the in jury. should be to nature, tried the court without a Defenses asserted to defeat this claim should also re- solved the court. If the resolution of the issues drawn and answer leave the counterclaim of by jury) (legal hence triable nature, and defendants judicata, subject court res trial to defense of jury for the determination of then should call a Bendix Aviation counterclaim and answers directed it. Morgantown City Corp. v. Glass, 81 F.S. 645. See Royal (2d) 169F. Co., Ltd., Ins. proper made, has for trial been Once demand authority the trial is divested of its fact-finder. I triable, court, If the counterclaim becomes the trial authority hold, would has not the to resolve it since proper made. demand Pringle Justice specially concurring part dissenting part: portion opinion majority
I in that concur of the holds one does not have the that on trial sounding brought by defenses lawin where complainant equity. sounds in portion opinion I from dissent which denies interposes to one who a counter- sounding sounding claim law equity. an action I recognize Tiger Placers v. Fisher, Co. 221, Colo. (2d) contrary my 54 P. view, I but would over- bring case rule that this state into line with doc- applying trine enunciated federal courts in Fed- eral Rule the source from which our Rule ema- 5 Moore’s Federal p. nates. See Practice 2d Ed., 145 ff thereunder, and the cases collected where it is at said page 146: “* * * no waiver trial results from the inter- position ‘legal’ a compulsory counterclaim, whether permissive, in a civil action which essentially equi- *8 interposition ‘legal’ from the table, nor of both a and an ‘equitable’ counterclaim. “Actually dispute there no prin- as the above *” * *
ciples. hesitancy overruling Tiger, supra, I have no would procedural here is involved since what and not therefore, claim can, plaintiff and the matter, substantive counterclaim have tried no vested that case. reason of a defendant should nor view, In neither my plaintiff set up to have matters opportunity deprived law counterclaim which sound determined wholly brought his because peers plaintiff the defendant suit against equity. original 20,241. No. Eugene Falkenburg Sternberg.
Louis D. 771) (388 [2d] P. January 27, 1964. Decided error. plaintiff Nathan Lee Baum,