Opinion
No. 17,745.
Decided September 24, 1956.
Claim against the estate of a deceased person based on a contract, the subject of litigation in the district court. The district court action being dismissed with prejudice, the claim was denied and the claimant brings error.
Affirmed.
1. ESTATES — Claims — Limitations. A claim based on a contract filed in an estate more than seven years after the breach thereof, was barred by the six year statute of limitations. (C.R.S. '53, 87-1-11.)
2. TRIAL — Prosecution of Cause — Burden. The burden rests upon the plaintiff to prosecute a case in due course without unusual delay.
3. Substitution of Parties — Rules. Under Rule 25 (a) (1), R.C.P., where a party to an action dies and the claim is not extinguished or barred, the court may, within two years after the death, order substitution of the proper parties; if substitution is not so made the action will be dismissed as to the deceased party.
4. JUDGMENT — Res Judicata — Estate — Claim. Where an action pending in the district court was dismissed under Rule 25 (a) (1), R.C.P., with prejudice for failure to substitute the personal representative of a deceased party, it became res judicata as to a claim filed in the county court based upon the same cause of action.
5. Dismissal of Action — Revival of Claim. Where an action pending in the district court was dismissed with prejudice, it could not be revived by a claim filed in the county court in the estate of a deceased party, which embraced the identical cause of action sought to be litigated in the district court action.
6. COURTS — Jurisdiction — Probate Matters. When a claim is filed in an estate pending in the county court, an action involving the same claim cannot subsequently be filed in another court.
7. ACTION — Courts — Selection of Forum. A plaintiff may not have two cases, involving the identical claim, pending at the same time, and when she chose to file her action for breach of contract in the district court, she was not at liberty thereafter to file an identical claim in the county court to enforce the same demand against the estate of the deceased defendant while the first case was pending.
8. COURTS — Jurisdiction — Probate Matters. If jurisdiction to hear a cause has properly attached in any court prior to the granting of letters in a probate court, the court where the jurisdiction first attached is the court to dispose of the action.
9. COURTS — Jurisdiction — Probate Matters. Where no action is pending in another court prior to the issuance of letters in the county court, the county court, sitting in probate, has exclusive jurisdiction to hear and determine all claims against the estate of a deceased person, and a claimant has no option to file suit in another court after letters are issued.
Error to the District Court of the City and County of Denver, Hon. Robert H. McWilliams, Jr., Judge.
Mr. HARRY A. KING, Mr. ROBERT E. HOLLAND, for plaintiff in error.
Mr. GRAHAM SUSMAN, Mr. HYMAN D. LANDY, for defendant in error.
ON June 4, 1956, the judgment of the district court in the instant case was affirmed by operation of law, Chief Justice Alter and Justice Knauss being in favor of affirmance and Justices Moore and Sutton being for reversal, with Justices Holland and Bradfield not participating. At that time there was a vacancy on the court. Later Mr. Justice Sparks was appointed to fill the vacancy caused by the untimely death of Mr. Justice Clark. In due course a petition for rehearing was filed by counsel for plaintiff in error. Justice Sparks, together with Chief Justice Alter and Justice Knauss are of the opinion that the motion for rehearing should be denied, and it has been determined that an opinion should be announced in the case.
Plaintiff in error will be herein referred to as Miss Koon, or claimant, and defendant in error, administratrix of the estate of Frank Barmettler, deceased, will be referred to as the Estate.
In 1946 Miss Koon filed a suit in Denver district court against Frank Barmettler based on a contract dated June 23, 1943, and an alleged breach which occurred November 7, 1944. She asked for damages in the sum of $65,402.88. In this action service was had and issue joined.
On July 18, 1952, Frank Barmettler died with the action against him still pending. On July 28, 1952, his wife, Emma Barmettler, was appointed administratrix of his estate in the Denver county court. On January 23, 1953, Miss Koon, as claimant, filed her claim against the estate stating that an action involving the claim above mentioned was pending and undetermined in the Denver district court.
The administratrix of the estate filed objections to the Koon claim on October 16, 1954, asserting that the district court had jurisdiction of the matters involved in the claim, hence the county court had no jurisdiction. On November 1, 1954, the county court held it did not have jurisdiction, but accepted the claim as notice of the pendency of the case in the Denver district court, and allowed claimant time in which to file evidence in said court of a final order in the district court litigation. On November 12, 1954, said district court action, numbered A-49221, was dismissed with prejudice for failure to substitute a personal representative of the deceased Frank Barmettler as required by Rule 25 (a) (1) Colo. R.C.P. Counsel for Miss Koon sought no review of this judgment of dismissal. Thereafter the Koon claim was called up for hearing in the county court. Robert E. Holland, Esq., now of counsel for plaintiff in error, did not enter this until May 9, 1955.
On December 29, 1954, the claim was disallowed by the county court. An appeal was then taken to the district court, where on May 10, 1955, the claim was again disallowed. From the judgment thus entered, Miss Koon brings the case here on writ of error.
It was stipulated and agreed by counsel that the claims asserted in the district court action by Miss Koon against Barmettler were identical claims filed in the estate matter in the county court. The claim as filed in the county court definitely stated that the demand was based on the district court action.
The Koon contract with Barmettler was dated October 27, 1943, and the breach thereof, which constituted Miss Koon's claim for damages, allegedly occurred on November 7, 1944. Mr. Barmettler died July 18, 1952, more than seven years after the alleged violation. It is apparent that if the Koon claim was not dependent on the outcome of the district court action but was wholly independent thereof, it was barred by the six year statute of limitations. C.R.S '53, 87-1-11. The only way the Koon demand could be kept alive was through a determination of the district court action, and the action having been dismissed with prejudice, the statute of limitations had run January 23, 1953, when the claim was filed in the county court for a breach of contract which occurred in 1944.
The district court action was commenced in 1946 and finally disposed of in November, 1954. Why the case was not disposed of by counsel, or by action of the district court, does not appear from the record before us. Nor does it appear why claimant did not apply to the district court for an order substituting the administratrix for the deceased Barmettler, defendant in that action.
The burden rests upon plaintiff, and not upon defendant, to prosecute a case in due course and without unusual delay. Colo. R.C.P. 41 (b) (1). Johnson v. Westland theatres, Inc., 117 Colo. 346, 187 P.2d 932.
Colo. R.C.P. Rule 25, (a) (1) provides: "If a party dies and the claim is not extinguished or barred, the court within two years after the death may order substitution of the proper parties. If substitution is not so made, the action shall be dismissed as to the deceased party. The motion for substitution may be made by the successors or representatives of the deceased party or by any party, * * *." (Emphasis supplied.)
The district court action had been pending for more than six years prior to the death of Barmettler, and the action was not dismissed until two years and four months after his demise. Under the rule above quoted, counsel for Miss Koon could have had the administratrix of the estate substituted for Barmettler. However, counsel suffered the case to be dismissed with prejudice.
[4, 5] When the district court, acting pursuant to Rule 25 (a) (1) Colo. R.C.P. dismissed the case with prejudice, it became res judicata as to all matters involved in the action. The county court so held and allowed claimant time to file evidence of a final adjudication of the case in the district court. Apparently nothing was done by her to comply with the county court order, and counsel for claimant suffered the district court action to be dismissed with prejudice and no attempt was made to have the order reviewed. When the district court suit was dismissed with prejudice it could not be revived by a claim in the county court which embraced the identical cause of action sought to be litigated in the district court, even though such claim was filed prior to the order dismissing the action. The objections to the claim in the instant case were well taken and properly sustained by the trial court. We hold that the dismissal with prejudice constituted a final determination of the matters in controversy between the parties. James v. James, 85 Colo. 154, 274 Pac. 816.
In speaking of the delays in this case the distinguished district judge who heard the case, commented: "* * * the court feels constrained to at least comment on the situation we are here confronted with, viz.: We are trying a lawsuit in 1955, the bases of which occurred in 1943 and 1944; this court cannot feel but that is a criticism of our judicial system that allows a dispute which arose in 1943 and 1944 to be reached, or overlooked until 1955. * * * I think there is a criticism of our courts to languish this along. * * * I simply can't believe, if counsel for the one side, or both sides did want to go to trial the matter would not have been heard much earlier, when Mr. Barmettler was still alive." The record before us amply justifies the criticism voiced by the trial judge. Trial courts should, under ample rules now in force and effect, require litigants to try their cases or clear their dockets of inactive cases.
We are not unaware of previous decisions of this Court which have effect upheld the exclusive jurisdiction of the county court to hear probate claims. In Colorado National Bank, Admr. v. McCue, 80 Colo. 55, 249 Pac. 3, we held that when a claim is filed against an estate pending in the county court, then an action involving the same claim cannot subsequently be filed in another court. We confirm that decision on the facts therein set forth.
In the case of Pierpont v. Earl, Admr., 80 Colo. 328, 251 Pac. 529, there is language to indicate that a claimant may have some option to file a claim in the probate court or to file an action in the district court. If this case be regarded as authority for the proposition that a claimant after probate jurisdiction has attached in a county court has the option of either presenting his claim in the county court or of filing suit in the district court, then such a holding is expressly overruled.
Since we are advised that this problem has been vexatious to parties and counsel alike, we feel that a clear and definite procedure be set forth to prevent further uncertainty. The problem can be divided into two categories; first, the situation in which a suit is pending in a court of competent jurisdiction prior to the time county court probate jurisdiction attaches; and, secondly, the situation in which no suit has been commenced at the time probate jurisdiction is invoked.
C.R.S. '53, 152-1-3 provides that the administration of all estates be had in the county court. This statute has long been interpreted as vesting exclusive probate jurisdiction in the county courts.
C.R.S. '53, 152-12-12 provides that all claims, except claims of the second class, but including unmatured and contingent claims, must be filed in the probate court within six months of the issuance of letters, or be forever barred. It is clear, therefore, that in any event a claim must be filed against an estate as above specified even though there is prior and pending litigation in another court.
In the instant case a suit against the deceased was pending in the district court, prior to the granting of letters of administration. The question to be answered is whether or not the "exclusive jurisdiction" of the county court in probate ousted the district court of jurisdiction to hear the pending cause.
It is Hornbook law that a plaintiff may not have two cases pending at the same time involving the identical claim. Having chosen the district court as the forum in which to try her case, Miss Koon was not at liberty to institute another action to enforce the same demand while the first case was pending. R.C.P. Colo. 25 (a) (1) plainly recognizes the duty resting on litigants to make substitution of an administrator or executor for a party litigant who dies while a case is pending.
This rule clearly contemplates the continuance of a pending cause for or against the deceased party. We are unable to perceive any legislative intent to oust any court of jurisdiction which was properly acquired in the first instance.
We hold, therefore, that if jurisdiction to hear a cause has properly attached in any court prior to the granting of letters in a probate court, then such court where the jurisdiction first attached is the court to dispose of the case. It follows that here the county court was correct in refusing jurisdiction of a case already pending in the district court prior to the issuance of letters.
We turn now to the second phase where no action is pending in another court against a deceased party prior to the issuance of letters in a county court. In such a case the county court sitting in probate has exclusive jurisdiction in its broadest sense to hear and determine all claims presented, and a claimant has no option to file suit in another court after the issuance of letters. C.R.S. '53, 152-1-8 grants the right of appeal from the county court to the district court in probate matters, but in any event, the county court is the first and proper forum under the situation set forth in this paragraph.
Perceiving no error in the record, the judgment is affirmed.
MR. JUSTICE HOLLAND and MR. JUSTICE BRADFIELD not participating.
MR. JUSTICE MOORE and MR. JUSTICE SUTTON dissent.