Opinion · Colorado Court Opinions

SPAR CONSOLIDATED v. AASGAARD, 33 Colo. App. 35 (1973)

Spar Consol. Mining & Dev. Co., a Colo. LimitedPartnership v. Christian S. Aasgaard, 516 P.2d 127 (Colo. App. 1973)

Type
Opinion
Court
Colorado Court Opinions
Jurisdiction
Colorado
Date
1973-09-25
Topic
general

SPAR CONSOLIDATED v. AASGAARD, 33 Colo. App. 35 (1973) (516 P.2d 127) Spar Consolidated Mining and Development Co., a Colorado LimitedPartnership v. Christian S. Aasgaard No. 72-423Colorado Court of Appeals.

Citator

UpLaw has not yet analyzed SPAR CONSOLIDATED v. AASGAARD, 33 Colo. App. 35 (1973). The absence of a flag is not a finding that it is good law.

SPAR CONSOLIDATED v. AASGAARD,33 Colo. App. 35(1973)
(516 P.2d 127)
Spar Consolidated Mining and Development Co., a Colorado Limited
Partnership v. Christian S. Aasgaard
No. 72-423
Colorado Court of Appeals.
Decided September 25, 1973. Rehearing denied October 10, 1973. Certiorari
granted December 10, 1973.
Unlawful detainer action seeking recovery of possession of portion of mining claim occupied by defendant. Giving res judicata effect to prior judgment entered in favor of plaintiff's predecessor, trial court entered judgment for plaintiff. Defendant appealed.Affirmed
1.JUDGMENT—Discrepancy — Mining Claim Description — Earlier Action —Typographical — Identity — Subject Matter — Extrinsic Evidence — Sustained.Since it is clear that discrepancy between description of mining claim in earlier action and that in present action is the result of a typographical error in the earlier judgment, and since whether there is identity of issues in two actions may be proved by extrinsic evidence, there was sufficient evidence produced to justify the trial court's conclusion that there was identity of subject matter in the two actions, and that finding must therefore be sustained on appeal.
2.PLEADING—Motion — Bill of Particulars — Not Provided For — UnlawfulDetainer Action — Not Constitute — Answer.A motion for a bill of particulars is not provided for in the statute governing unlawful detainer action nor in the county court rules, and it does not constitute an answer because it fails to admit or deny the material allegations of the complaint.
3.JUDGMENT—Default — Properly Entered — Subsequent — Collateral Attack— Improper.Where a court has jurisdiction of the parties and of the subject matter, its judgment is not void and is not subject to collateral attack; thus, where default judgment was properly entered against defendant as a result of his failure to file a timely answer, a subsequent attack on that judgment premised on defendant's filing of a motion for a bill of particulars in lieu of an answer is an improper attack upon the judgment.Page 36
4.County Court Orders — Not Required — To Be Signed — Claim — UnsignedJudgment — Void — No Merit.There is no provision in the rules for county court procedure requiring orders to be signed in order to be valid, and thus there is no merit to defendant's claim that unsigned county court judgment is void.
5.As Between Parties — Manifestly Unjust — Allow Plaintiff — RaiseIssue of Title — Plaintiff — Defaulted — Prior Action.As between successor in interest to plaintiff in earlier unlawful detainer action and defendant, default by defendant in the prior action constitutes admissions of the allegations set forth in that complaint; thus, it would be manifestly unjust to permit defendant to raise the issue of title in present action when he has defaulted in a prior suit upon the same issue, concerning the same subject matter, and between the same parties, or parties in privity, as the present suit.
Appeal from the District Court of Pitkin County, Honorable George E. Lohr, Judge.
Joseph E. Edwards, Jr., for plaintiff-appellee.

Wendt Kistler, Bruce Kistler, for defendant-appellant.
Division II.
Opinion by JUDGE SMITH.
This is an action in unlawful detainer brought by plaintiff Spar Consolidated Mining and Development Company seeking recovery of possession of that portion of the Big Chief Lode Mining Claim, U.S. Mineral Survey No. 4237 occupied by defendant Aagaard's timing shack. The case was tried to the district court and judgment was entered in favor of plaintiff. Defendant contends that the trial court erroneously gave res judicata effect to a previous judgment between plaintiff's predecessor, Spar Consolidated Mines Company, and defendant. We affirm.

In 1967, Spar Consolidated Mines Company, plaintiff's predecessor in title, instituted a forcible entry and detainer action against Aasgaard in the Pitkin County Court, which suit resulted in a default judgment in favor of Spar Consolidated Mines. In the present case, the district courtPage 37concluded that the 1967 county court judgment established, between the parties to that action, that Spar Consolidated Mines was the owner of the Big Chief Lode Mining Claim, and that Aasgaard wrongfully occupied the shack on that property. Having determined that there was identity of parties, subject matter, and issues, the district court ruled that the previous county court judgment established that plaintiff owned the Big Chief Lode Mining Claim and that the shack occupied by defendant was located on that property.
I.
[1]Defendant first urges that the property in the county court action was described as Big Chief Lode Mining Claim, U.S. Mineral Survey No. 4327, while the property involved in this action is described as Big Chief Lode Mining Claim, U.S. Mineral Survey No. 4237 and that there is therefore no identity of subject matter, thus rendering the doctrine of res judicata inapplicable. It is clear from the record that the discrepancy in mineral survey numbers is the result of a typographical error in the entry of the default judgment. In addition, whether there is identity of issues in two actions may be proved by extrinsic evidence.See Bijou Irrigation Districtv. Weldon Valley Ditch Co.,67 Colo. 336,184 P. 382. There was sufficient evidence produced to justify the trial court's conclusion that there was an identity of subject matter, and that finding must therefore be sustained on appeal.
II.
Defendant also argues that a motion for a bill of particulars was filed in the county court proceedings, that this constituted a responsive pleading, and that it is well established that judgment by default is improper where a responsive pleading has been filed.[2,3]The county court suit was based on the statutory unlawful detainer action under C.R.S. 1963, 58-1-1, et seq. The pleadings are governed by statute.Kenney v. Daugherty,67 Colo. 56,185 P. 471. C.R.S. 1963, 58-1-13 requires that: "The defendant shall file with the court at or before the time specified for his appearance in the summons, an answer, in writing . . . "Page 38

A motion for a bill of particulars is not provided for in the statute nor in the county court rules, and it does not constitute an answer because it fails to admit or deny the material allegations. The failure of Aasgaard in the county court proceeding to file a timely answer in writing properly resulted in a default judgment against him. Where a court has jurisdiction of the parties and of the subject matter, its judgment is not void and is not subject to collateral attack.Hill v. Benevolent League of ColoradoTravel Ass'n,133 Colo. 349,295 P.2d 231. This attack on the judgment is therefore improper.
III.
[4]Nor is there any merit in defendant's claim that the county court judgment is void because the order for default, although entered, was not signed. we find no provision in the Rules for County Court Procedure, C.R.C.P. 301-411, requiring orders to be signed in order to be valid.
IV.
[5]Defendant's final argument is that the county court has no jurisdiction to determine title or interest in land and that it was therefore error for the district court to determine that title was vested in the plaintiff on the basis of the default judgment entered in county court. A defendant in an unlawful detainer action who fails to answer within the required time thereby admits the allegations set forth in the complaint.Feste v. People,93 Colo. 206,25 P.2d 177. That rule is applicable in the present case. In the county court action, Spar Consolidated Mines Company alleged that it held title to the Big Chief Lode Mining Claim and that defendant Aasgaard was in unlawful possession. As between plaintiff, successor in interest of Spar Consolidated Mining Company, and defendant, default by defendant in that prior action constitutes admission of the allegations set forth in that complaint. It would be manifestly unjust, whether we apply the doctrine of res judicata or apply a theory of estoppel, to permit defendant to raise the issue of title in the present suit when he has defaulted in a prior suit based upon the same issue, concerning the same subject matter, and between the same parties, or parties in privity, as in the instant suit.Page 39

Defendant's other claims of error are also without merit.

Judgment affirmed.

CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.