Opinion
Rehearing Denied Jan. 21, 1975.
Raymond Duitch, Colorado Springs, for plaintiff-appellant.
Robert W. LaBree, Colorado Springs, for defendant-appellee.
COYTE, Judge.
Plaintiff, Trudy Block, appeals from entry of judgment in a replevin action awarding defendant $3,078 on his counterclaim. We affirm.
Defendant had performed work on a 1965 Chevrolet truck upon which he claimed a mechanic's lien and sought foreclosure on his lien in the county court. At the conclusion of the foreclosure suit, the court entered an order authorizing sale of the truck. Plaintiff-appellant thereupon sought to set aside the order approving the sale contending that there was no lien upon the accessory equipment to the truck and, further, that she had a first and prior lien on the truck. The county court refused to set aside the order. It found that Schaefer had a lien on the truck and ordered it sold. This was done and it was bid in by Schaefer and he obtained possession of the truck. The court further found that plaintiff was an officer and director of the company that had been represented as the owner of the truck, and that she had bought with knowledge of the lien claim of Schaefer. It further found that she should not be placed in a worse position than the owner of the security interest which she had purchased, and that she had a lien prior to that of Schaefer in the amount of $850. Plaintiff appealed to the district court where the judgment of the trial court was affirmed. She thereupon applied to the Supreme Court for certiorari which was denied.
In the meantime, plaintiff initiated this action for replevin in the district court and thereby regained possession of the truck. The defendant answered contending that the litigation in the county court was res judicata as to the issue of ownership of the truck and filed a counterclaim for damages done to the truck while in possession of the plaintiff.
The trial court in this action ruled that the question of ownership of the truck was determined in the lien foreclosure proceeding and was res judicata as to plaintiff's claim for replevin. It then stated that it would not hear evidence on the issue of damages until the county court clarified its order as to whether an air compressor and other equipment which constituted improvements on the truck were encompassed in that court's order approving sale of the vehicle.
Both parties appeared for this hearing in the county court, at the conclusion of which the court ruled that the order approving sale of the truck included the vehicle together with all the improvements at issue here. There was no appeal taken from this order and plaintiff does not challenge the validity of the procedure utilized to obtain clarification of the county court order.
Subsequently, the district court heard evidence on defendant's claim for damages which revealed that certain items were removed from the truck while in plaintiff's possession. Testimony was then offered as to the value of these items. At the conclusion of the hearing, judgment was entered in favor of defendant and against plaintiff in the amount of $3,078, the value of the items removed from the truck while in plaintiff's possession.
Plaintiff argues that defendant's lien did not attach to special items of equipment on the truck and that it was proper for plaintiff to sell these items while in her possession. She further argues that, even if the items sold were covered by the lien, there was not sufficient evidence to support the amount of damages awarded to defendant.
Plaintiff's contention that the county court order, for sale of the truck, did not include the special equipment on the truck is without merit. As stated in Rogoff v. Charash, 154 Colo. 503, 391 P.2d 680:
'It is a basic principle of law that a judgment is res judicata as to every question actually presented and decided, as well as to every question which was within the issues and could have been presented and determined. Each of the issues here involved was specifically involved, or would have been pleadable as a defense, in the action long since determined, and is no longer available.'
The issue as to whether defendant had a lien on the special items of equipment installed on the truck was decided in the county court. This decision was affirmed in the district court and the Supreme Court refused to grant certiorari. Following the second determination by the county court, no appeal was taken. The trial court correctly ruled that the issues previously decided were res judicata to those attempted to be raised by plaintiff in this suit.
Plaintiff contends that Schaefer bid the truck in at the sale authorized by the county court for less than the value of the items removed by plaintiff while she had possession. Such contention is irrelevant to the issue before us. The question for review is whether the evidence supports the findings of the court on the issue of damages. Defendant and four other witnesses testified as to the value of the items that were removed from the truck. The court found that the total value of the items removed was $3,078. Since this finding is supported by the evidence, it is binding on us on appeal. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
Judgment affirmed.
RULAND and STERNBERG, JJ., concur.