45 P.2d 642 | Colo. | 1935
THIS case was here before. See Independence IndemnityCo. v. Silver State Building and Loan Association,
After the remittitur reached the district court the Building and Loan Association moved for leave to amend its replication and the Indemnity Company moved for a dismissal of the case. The court refused leave to amend, and dismissed the case; whereupon the Building and Loan Association sued out this writ of error.
[1] It is contended by the plaintiff in error that the mandate indicates that this court intended that there should be a new trial. Too much emphasis is placed upon the words "further proceedings." A dismissal may be a further proceeding. Whether or not a new trial is to be had upon reversal depends upon circumstances. This case was fully tried upon the merits, all the evidence that could be produced was produced at the trial, and there was no indication that there was any newly discovered or additional evidence that could be presented at another trial. It was not so much a case of failure of proof as it was a case where the record showed affirmatively that the plaintiff was not entitled to recover. That showing was made partly by admissions in the pleadings of the Building and Loan Association and the testimony *562 of its president, and partly by other evidence. Upon consideration of the entire record, we concluded, and held, that under the law, as applied to the facts, plaintiff was not and is not entitled to judgment. In the circumstances, there was only one thing for the trial court to do upon reversal, and that was to dismiss the case. In dismissing it, the trial court acted in obedience to our mandate; such proceedings conformed to the judgment and the opinion of this court.
[2] It is unnecessary for us to deal at length with the ruling of the court denying leave to file the proposed amendment. The amendment was merely an elaboration of what already had been stated, but more concisely, in the pleadings; all of the evidence that could be admitted under the amendment could have been, and undoubtedly was, introduced under the issues as made; and all the matters alleged in the amendment were as well known to the pleader when the original pleadings were filed as when the amendment was tendered. The court did not err in refusing leave to amend.
The judgment is affirmed.