C.r.c.p. 7
C.r.c.p. 7
Annotation I. General Consideration. Law reviews. For comments on nomenclature by rules committee, see 22 Dicta 154 (1945). For article, "Pleadings, Rules 7 to 25 ", see 28 Dicta 368 (1951). For article, "Pleadings and Motions: Rules 7-16 ", see 23 Rocky Mt. L. Rev. 542 (1951). For note, "Comments on Last Clear Chance-Procedure and Substance", see 32 Dicta 275 (1955). For article, "One Year Review of Civil Procedure", see 34 Dicta 69 (1957). Applied in Davison v. Bd. of County Comm'rs, 41 Colo. App. 344, 585 P.2d 315 (1978); People ex rel. Losavio v. Gentry, 199 Colo. 212, 606 P.2d 57 (1980); In re Deines, 44 Colo. App. 98, 608 P.2d 375 (1980); In re Stroud, 631 P.2d 168 (Colo. 1981). II. Pleadings. Law reviews. For article, "Comments on the Rules of Civil Procedure", see 22 Dicta 154 (1945). For standard pleading samples to be used in quiet title litigation, see 50 Dicta 39 (1953). Strictly speaking, one no longer proceeds by complaint, but rather by claim for relief. Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975 (1957). Where no reply is ordered and defendants desire to rely on an affirmative defense, they must set forth the affirmative defense in the answer. Trustee Co. v. Bresnahan, 119 Colo. 311, 203 P.2d 499 (1949). A reply to an affirmative defense is merely permissive. McNeece v. McNeece, 39 Colo. App. 160, 562 P.2d 767 (1977). Where no reply is required, defendants are put on notice that any matter in avoidance of their defense will be deemed in issue before the court. Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982 (1957). An alternative direction to reply or elect to stand is not an unequivocal order to reply within the meaning of the final sentence of section (a) of this rule. North Poudre Irrigation Co. v. Hinderlider, 112 Colo. 467, 150 P.2d 304 (1944). Where no counterclaim is advanced, plaintiff has no duty to reply. Where neither the pleadings of defendants nor the answers of interveners advanced a counterclaim, plaintiff, under section (a) of this rule, had no primary duty to reply to either. North Poudre Irrigation Co. v. Hinderlider, 112 Colo. 467, 150 P.2d 304 (1944). Where defendant set up an agreement in its answer which was tantamount to a counterclaim, plaintiff was not required to plead the defenses asserted thereto. Colo. Woman's Coll. v. Bradford-Robinson Printing Co., 114 Colo. 237, 157 P.2d 612 (1945). The rules specifically authorize the inclusion of counterclaims in replies to counterclaims, and the analogous federal rules have been so interpreted by the federal courts. T. L. Smith Co. v. District Court, 163 Colo. 444, 431 P.2d 454 (1967). There is nothing inherently improper about asserting a counterclaim in a reply to a counterclaim. T. L. Smith Co. v. District Court, 163 Colo. 444, 431 P.2d 454 (1967). Summons held to be writ, not a pleading. Where a summons informed the defendant that he had been sued by the plaintiffs for damages as a result of an automobile collision and did not purport to set forth the claim for relief upon which the action or proceedings was based, it was merely a writ, and not a pleading, which, pursuant to C.R.C.P. 3(a), must follow within 10 days after the service of summons. Ardison v. Villa, 248 F.2d 226 (10th Cir. 1957). III. Motions and Other Papers. Law reviews. For article, "In the Matter of Ex Parte Restraining Orders, Injunctions and Writs of Ne Exeat in Divorce Cases", see 9 Dicta 190 (1932). For article, "Expediting Court Procedure", see 10 Dicta 113 (1933). Section (b)(1) of this rule is mandatory. Salter v. Bd. of County Comm'rs, 126 Colo. 39, 246 P.2d 890 (1952). Oral motion cannot be properly considered by trial court. Where a husband failed to pay temporary alimony awarded his wife, the wife filed a motion for citation requiring him to show cause why he should not be punished for contempt for such failure, and in the hearing on the citation an order suspending the monthly payments of alimony was made on oral motion, it was held that the oral motion under the circumstances could not properly be considered by the trial court. Wright v. Wright, 122 Colo. 179, 220 P.2d 881 (1950). Approved oral motions are nullities where rule is not complied with. Where upon oral motion and without notice, plaintiff obtained ex parte a nunc pro tunc order extending his time to lodge the reporter's transcript, and also obtained a further extension of time ex parte, but not nunc pro tunc, by again oral motion and without notice, it was held that the "purported" extensions of time were in each instance a nullity because neither was obtained in the manner prescribed in C.R.C.P. 6(b)(2) and section (b)(1) of this rule. Marcotte v. Olin Mathieson Chem. Corp., 162 Colo. 131, 425 P.2d 37 (1967). Motions made incidental to a hearing need not be reduced to writing. Motions made at a hearing that are obviously incidental to the hearing itself, such as motions to exclude evidence, for a directed verdict, or for a mistrial, etc., are motions which are recorded in the minutes of a hearing or trial, and it is for this reason that such motions need not be reduced to writing and notice thereof given. Wright v. Wright, 122 Colo. 179, 220 P.2d 881 (1950). Rule 11 sanctions are applicable to motions and other papers pursuant to Rule 7(b)(2). Jensen v. Matthews-Price, 845 P.2d 542 (Colo. App. 1992). Default judgment motion must be in writing setting forth grounds therefor. A party fails to follow C.R.C.P. 55(f) as to default judgments on substituted service where he does not apply for the judgment by written motion setting forth with particularity the grounds in support of the motion and the relief sought as required by section (b)(1) of this rule. Norton v. Raymond, 30 Colo. App. 338, 491 P.2d 1403 (1971). Statement in motion held insufficient to inform court. Where motion to dismiss complaint stated that "the said complaint is not in accordance to the 1935 Colorado Statutes Annotated, and was filed in violation thereof, and contrary to the said statutes in such case made and provided", the statement was insufficient to inform the court concerning the nature of the grounds upon which the dismissal was sought. Gordon Inv. Co. v. Jones, 123 Colo. 253, 227 P.2d 336 (1951). Notice requirement where motion to reinstate jail sentence is treated as civil proceeding. Where a motion to reinstate a jail sentence imposed following conviction of vagrancy under a city ordinance, and the case is treated as a civil proceeding, it is incumbent upon a city to serve a copy of such motion or a written notice of hearing thereon upon the defendant personally or through his counsel, and where counsel has withdrawn, such notice must be served upon the defendant personally under section (b)(1) of this rule. Zerobnick v. City & County of Denver, 139 Colo. 139, 337 P.2d 11 (1959). IV. Demurrers, Pleas, etc. Abolished. Law reviews. For article, "Comments on the Rules of Civil Procedure", see 22 Dicta 154 (1945). Under this rule, a demurrer to a complaint would be considered a motion to dismiss. Henderson v. Greeley Nat'l Bank, 111 Colo. 365, 142 P.2d 480 (1943). V. Agreed Case. Annotator's note. Since section (d) of this rule is similar to § 310 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Affidavit required by this rule must be filed. Considering a cause as a proceeding brought on an agreed statement is error where there is no compliance with the filing of the affidavit required by section (d) of this rule. Mesch v. Bd. of County Comm'rs, 133 Colo. 223, 293 P.2d 300 (1956). Relief sought must be expressed in agreement. Where parties waive process and pleading and come before the court upon an agreed case, the nature of the relief sought must be expressed in the agreement. Central City Water Co. v. Kimber, 1 Colo. 475 (1872). If there is no agreement, a court is not empowered to do anything. Under section (d) of this rule, the court acquires jurisdiction of the parties and of the subject matter by force of the agreement, and if nothing is expressed as to the judgment or decree to be rendered upon the facts stated, the court is not empowered to do anything whatever. Central City Water Co. v. Kimber, 1 Colo. 475 (1872). Parties cannot merely demand information as to their rights. If parties may go before a court with a naked statement of facts, and demand information as to their rights, without more, the courts will become schools of instruction with little time to attend to their proper and legitimate duties. Central City Water Co. v. Kimber, 1 Colo. 475 (1872). Inadvertent omission of facts from statement may be relieved against. A stipulation in a case by both parties made for convenience and expedition, but by which counsel inadvertently admit facts not in accord with the premises and injurious to their client, may be relieved against. Welsh v. Noyes, 10 Colo. 133, 14 P. 317 (1890). To strike out a portion of a stipulation on the suggestion of one party is error if such part is material; rather, the entire stipulation should be canceled. Welsh v. Noyes, 10 Colo. 133, 14 P. 317 (1890). A party may amend ad damnum in agreed statement. Autrey v. Bowen, 7 Colo. App. 408, 43 P. 908 (1884). In a case heard on an agreed statement of facts, it is not necessary to move for a new trial. Clayton v. Smith, 1 Colo. 95 (1868). An agreed statement of facts in an action already pending is not an agreed case. Wagner-Stockbridge Mercantile & Drug Co. v. Goddard, 33 Colo. 387, 80 P. 1038 (1905); Truesdale v. Bd. of Comm'rs, 44 Colo. 416, 99 P. 63 (1908). Motion instituting suit held not to comply with requirements for agreed statement. Mesch v. Bd. of County Comm'rs, 133 Colo. 223, 293 P.2d 300 (1956). Applied in Metropolitan Denver Sewage Disposal Dist. No. 1 v. Farmers Reservoir & Irrigation Co., 179 Colo. 36, 499 P.2d 1190 (1972).
For counterclaims and cross claims, see C.R.C.P. 13; for third-party practice, see C.R.C.P. 14.