299821

COPYRIGHT, 1923

BY

WEST PUBLISHING COMPANY

(211 PAC.)

OF THE COURTS REPORTED DURING THE PERIOD COVERED BY THIS VOLUME

27 Term expired December 1, 1922.

28 Elected December 1, 1922.

COURT RULES

SUPREME COURT OF COLORADO

I. PRACTICE

AND PROCEDURE IN action, and bars a new action between the NISI PRIUS COURTS same parties or their privies on the same cause of action, unless the court shall dismiss or direct judgment of non-suit without prejudice.

Commenced.

1. Actions-How Actions shall be commenced and summons issued and served as provided by the Code of Civil Pro

cedure.

6. Retrial May be Limited to Specific QuesUpon a motion for a new 2. Allegations in One Count, etc.-Incor- tions of Fact. porated in Other Counts by References, etc. trial, the court may, in its discretion, order Allegations appearing in any count, defense a retrial of questions of fact with respect to or counterclaim need not be repeated but which error was committed without resubmay be incorporated in other counts, defens- mission of those concerning which there has es or counterclaims by reference. Any writ-been no error.

ten instrument may be made a part of a 7. Instructions-Objections, How Madepleading by attaching the same or a copy | Review Limited to Such Objections. Coun

thereof thereto as an exhibit.

sel shall present to the trial court, at or prior to the close of the evidence, such instructions as they may desire. The court shall afford respective counsel a reasonable time and opportunity to examine proposed instructions, whether requested, or to be given by the court of its own motion, and to prepare and present specific objections thereto before such instructions are given to the jury. On motion for new trial, or on review by the Supreme Court, only the grounds so specified shall be considered.

3. Docketing Cause When Place of Trial is Changed-Failure to Do So-Order Vacated. In case of change of place of trial of an action the party at whose instance such change is granted shall docket the cause in the court to which it was transferred within fifteen days after the receipt of the record by the clerk of such court. On failure to do so, the court ordering the change, on motion of the adverse party and notice to opposite counsel, with proof of such failure, shall set aside the order of transfer and shall thereupon be re- 8. Motion for New Trial-Necessity of— invested with full jurisdiction of the cause Exception. The party claiming error in the for all purposes, except where the change was trial of any case must, unless otherwise orordered on account of the disqualification of dered by the trial court, move that court for the judge, in which instance a competent a new trial, and, without such order, only judge shall be secured to try the cause. The questions presented in such motion will be party at whose instance the place of trial considered on review. was changed shall not be permitted to apply for another change upon the same ground.

9. Stay of Execution-Terms. The trial court shall stay execution until the expira4. Motion to Quash Process or Service- tion of five days from the time of entry of General Appearance-Exemptions. A mo- judgment, and upon motion within said five tion to quash a summons or scire facias or days, or within the time of any extension, service of either shall, if overruled, be may grant a further stay pending application deemed a general appearance of the party to the Supreme Court for a supersedeas. Upmaking such motion. This rule shall not ap-on granting the stay of five days, or any furply where the moving party claims exemp-ther stay, the trial court may prescribe terms tion from service of process, nor to service or require security, or both. (See rule 21.) of process on minors or persons judicially declared incapable of conducting their own affairs.

5. When Dismissal on Non-Suit Bars Another Action. The dismissal of an action upon the ground that the testimony does not establish the cause of action involved, or a judgment of non-suit for the same reason. is a final determination of the merits of such 211 P.

10. Trial Court Record-Enlargement of. The record in the trial court may be enlarged or added to as provided in the Code of Civil Procedure. (See Code of Civil Procedure, chapter 38, Revised Statutes of 1908.)

11. Service of Notice of Motion by Mail. Service of notice may be by mail as prescribed in the Code of Civil Procedure, and when so served the time shall be increased (vii)

12. Courts to Provide Rule for Dismissal of Actions. Nisi prius courts shall by rule provide for the dismissal of actions not prosecuted or brought to trial with due diligence. 13. Trial Courts-Make Additional Rules -Own Procedure. The nisi prius courts may make rules to govern their own procedure, not inconsistent with these rules or with law.

II. PRACTICE AND PROCEDURE IN
THE SUPREME COURT

above that to be given where service is per- [pointment of, or sustaining or overruling a
sonal, one day for every one hundred and motion to discharge, a receiver, may be re-
twenty-five miles, or fraction thereof, be- viewed on error, before final judgment, if
tween the place of deposit and the place of prompt application for that purpose is made.
address. (See chapter 37, Code of Civil Pro- 18. Writs of Error-Supersedeas-Process
cedure, Revised Statutes of 1908.)
on Writs of Error. Writs of error shall be
directed to the clerk or keeper of the rec-
ords of the court in which the judgment or
decree complained of is entered, commanding
him to certify a correct transcript of the rec-
ord to this court. In any case where a
transcript of the record, duly certified to be
full and complete, or an agreed record on er-
ror, has been filed or may be hereafter filed,
in the office of the clerk of this court, before
the issuance of a writ of error, it shall not
be necessary, except in a case where a super-
sedeas may be allowed, to deliver such writ
to the clerk of the inferior court; but the
same may be filed in the office of the clerk of
this court and such transcript or agreed rec-
ord so filed with the clerk of this court shall
be taken and considered to be a due return
to said writ of error. In capital cases, in
which a writ of error shall issue and be made
to operate as a supersedeas to stay the exe-
cution of the judgment of the trial court,
as provided by statute, such writ of error,
and also the scire facias to hear the errors
assigned, shall be made returnable forthwith.
When a writ of error shall issue in a case
where a supersedeas has been allowed after
the filing of the record, and shall be served
on the clerk of the inferior court, he shall re-
turn upon said writ that the same has been
served upon him and that it appears by the
endorsement thereon that a record has been
filed in the office of the clerk of the Supreme
Court.

14. Sessions en Banc and in Departments. The Chief Justice may convene the court en banc at any time, and shall do so on the written request of three Associate Justices. Subject to this provision, or as limited by the Constitution, sessions of the court in departments for the purpose of hearing oral arguments, and designation of the Justices to hear such arguments, shall be under the direction and control of the Chief Justice. In case of his absence or inability to act, such duties shall devolve upon the Justice who would next be entitled to become Chief Justice.

15. Court-Special Terms-Notice of. Special terms of court may be held at any time upon an order signed by at least four of the Justices of the court and filed in the office of the clerk at least fifteen days prior to the day appointed for such assembling of the court. The clerk, on receipt of such order, shall forthwith enter the same at length in the records of the court, and give notice of the appointment of such special term, and the day appointed therefor, in one or more newspapers published at the seat of government.

16. Appearance as Amicus Curiæ. An attorney of this court may appear as amicus curiæ in any cause pending herein by request of the court, or by leave of court first had upon written application filed in said cause, setting forth the particular employment, relationship, or interest by reason whereof such leave is sought; and not otherwise.

19. Summons to Hear Errors-Service and Return Thereof-Appearance. A scire facias or summons to hear errors in civil cases, and criminal cases not capital, shall require the defendant in error to appear in obedience thereto within 10 days after service thereof, and shall be returnable 20 days after the issuance thereof. The service thereof, when by publication, shall be complete upon the expiration of the last day of such publication.

20. Scire Facias-Alias or Pluries may Issue. If a scire facias, or summons to hear errors, shall not be served, an alias or pluries may be issued without an order of court therefor.

17. Writ of Error-Limitation One YearException-Receiver-To Review Order Con- 21. Stay of Execution-Review of. If eicerning. A writ of error shall not be ther party considers his rights have been, or brought after the expiration of one year from will be, prejudiced by any ruling or order of the rendition of the judgment complained of; the trial court in respect to any application but when a person thinking himself aggrieved for a stay or further stay of execution under by any judgment or decree that may be re- rule 9, he may docket the case in the Suviewed in the Supreme Court, shall be an in-preme Court on error by filing a verified fant, non compos mentis, or imprisoned when statement setting forth the nature of the the same was rendered, the time of such dis- cause of action, the judgment, rulings and ability shall be excluded from the computa- | other matters complained of, from which it tion of the said one year. (See 185 Pac. 351.) appears the trial court has committed error An order appointing, or denying the ap to his prejudice, and the Supreme Court may

H