Vallero v. Camilla

53 Colo. 312 | Colo. | 1912

Mr. Justice Gabbert

delivered the opinion of the court:

The hearing was solely upon a motion to dissolve the temporary injunction. For this reason, it was error to- dismiss the bill, although the showing made justified the dissolution of the temporary writ, as plaintiff still had -the right to a trial of the cause upon its merits, and to such relief as the case then made warranted. — Spar Con. M. Co. v. Casserleigh, 34 Colo. 454.

On behalf of defendants in error, it is asserted that the complaint does not state a cause of action. Conceding, but not deciding, that this is correct, the defect of the complaint in this respect may have justified the dissolution of the temporary writ, but plaintiff should have been afforded an opportunity to amend, if so advised. She was deprived of this by the judgment of dismissal.

The judgment of the district court, dismissing the action, is set aside, and the case remanded with directions to reinstate on the docket, and for such further proceedings as will*1 be in harmony with this opinion.

Reversed in part and Remanded.

Mr. Justice Musser and Mr. Justice Hill concur.